Court File and Parties

COURT FILE NO.: C-280-15 DATE: 2017-03-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Aline J. Robert and David E. Guthrie Plaintiffs – and – Tania Assis and Richard Buitendyk Defendants

Counsel: J. Sebastian Winny, for the Plaintiff Sharon P. Ilavsky, for the Defendants

HEARD: January 30, 31, February 1, 2, 3, 6, 7, 8 & 9, 2017

SLOAN, j.w.

REASONS FOR JUDGMENT

[1] This action arises out of an ongoing neighbourhood dispute between two neighbouring families.

[2] The plaintiff, Aline, purchased 15 Main Street in Ayr, Ontario on or about July 1989. David joined her there in 2001.

[3] Aline is a self-employed accountant who works mainly from her home.

[4] David is employed in the plastics industry.

[5] Tania taught at a local Montessori school until October 2016.

[6] Richard is employed in the computer industry.

[7] Prior to the defendants purchasing the home at 19 Main Street, the plaintiffs had only one other neighbour, who passed away just prior to the defendants purchasing the property.

[8] From 1989 to 2009 there were no fences between the two properties.

[9] When the defendants moved into the neighbourhood sometime in 2008, the two male parties cooperatively built a fence partly between the properties although they later found out the fence was built at an angle across the lot line rather than parallel to it. I will refer to this fence as a “middle fence”. Aline testified that she knew right away that part of the middle fence was on their property, but for some unexplained reason she said nothing about it.

[10] There were some minor disagreements and curt discussions, particularly between the female parties, but in general all parties got along. At least on one occasion, Tania and her son were invited to the plaintiffs’ pool.

[11] Things had somehow changed by December 2012, when the defendants built what I will refer to as the “front fence” between the properties near the municipal road. The plaintiffs’ position is that the defendants did not discuss building this fence before they went ahead with building it. The defendants’ position is that they informed the plaintiffs they were going to build the fence.

[12] While building the front fence, the defendants removed all of the branches, at least to the extent necessary for them to complete the front fence, from seven fir trees, whose trunks are on the plaintiffs’ property very near the lot line.

[13] Aline had planted the trees approximately in 1992, and was adamant that they had been planted entirely on her property. The survey (Exhibit 1) bears this out, with the exception of perhaps one tree. Prior to 2012, there had been some terse discussions between the female parties about the location of the trees and whether or not Tania could plant other trees in line with the original seven.

[14] Although there is no official counterclaim filed by the defendants, both parties allege similar wrongdoings against the other party.

[15] While the plaintiffs’ allegations are set out in their Statement of Claim, the defendants’ allegations are set out in a letter dated May 22, 2014, (Exhibit 5, Tab 5) which was sent by their lawyer to the plaintiffs and threatened court action.

[16] The counter allegations by both parties include several of the following, among other grievances: damage to trees owned by the other party; removing trees owned by the other party; removing fences; damage to each other’s property; leaving debris on the other’s property; shining extremely bright lights at the property of the other party, and in particular, their houses; yelling and shouting at the other including the use of obscenities; trespass to each other’s property; maintaining video/audio surveillance over each other’s property; shooting pucks and balls onto the other’s property; and allowing dogs to defecate on the other’s property.

[17] The plaintiffs live in a bungalow while the defendants live in a two-story structure.

EVIDENCE

David Gutherie

The Backyard Trespasses

[18] It is David’s evidence that in 2012, on two occasions approximately two weeks apart, he and his wife heard a commotion in the backyard at night. He looked out to see Richard hurrying out of their backyard.

[19] On both occasions David exited his back door and shouted profanities such as “what the fuck are you doing here”, and on the second occasion, “why do you keep coming over here”, etc. David never heard a response.

[20] Aline was also present and confirmed David’s testimony.

[21] Two days after the second incident, while David was near the back of his property up the hill, he found two cigarette butts, an empty beer bottle and small area of grass that had been patted down by somebody standing on it. He testified that this would have been the approximate location where he initially saw David before he exited their property.

[22] To this date Richard has never explained to David why he was there.

[23] Neither of the plaintiffs ever confronted Richard after these incidences about why he had been in their backyard.

Building of the Front Fence

[24] As previously mentioned, sometime in December 2012, Richard built a fence at the front of his property with no advance discussion with David.

[25] David received a text from his wife the day the construction started. When he returned home after work, David asked Richard if the fence was on his property, to which Richard replied that it was.

[26] At that time, David testified that there was some lawn damage and some plastic garden edging that was broken. He testified that he fixed the problems for about $30 worth of material. Both plaintiffs testified to the damage that was caused by a skid steer, but no pictures of the damage were entered into evidence. Because of the damage, and the tire marks from the skid steer, the plaintiffs concluded that the defendants’ trespassed on their property during the fence’s construction.

[27] Initially, when David talked to Richard upon coming home from work, he did not mention anything about the fact that the branches on Richard’s side of seven trees had been removed, to a height of approximately 8 feet. Aline testified that when she questioned Richard as to why he had pruned these trees, he started to swear at her and called her a “stupid bitch”. He also indicated that she did not know where the boundary line was. Aline promptly left the scene.

[28] The plaintiffs did not call the police about this incident.

[29] On cross examination, David stated that prior to trimming the branches he did not seek advice with respect to the condition of the trees or the distress they might be under.

[30] David also testified that he does not recall Richard asking him to stop cutting the branches.

[31] Both plaintiffs testified that Richard complained he could see through the cracks in his fence due to the plaintiffs’ pruning, which took away his privacy.

[32] Despite the plaintiffs obtaining a survey dated August 28, 2013, they never gave a copy of the survey to the defendants, nor did they discuss the survey with them. When asked why they didn’t give the defendant the copy, Aline replied because the defendants would have been able to see the survey stakes.

Surveillance

[33] In August 2013, Aline’s mother noticed a surveillance camera attached to the defendants’ home.

[34] After investigating further, David concluded that the camera was about 15 to 20 feet above the ground, and pointed at the side of their house where there are windows for the master bedroom, the plaintiffs’ granddaughter’s bedroom and Aline’s office.

[35] Pictures, which have been labelled Exhibit 4, Tab C, photographs 34 and 35, were taken on August 27, 2013 by a neighbor. These pictures show the location of the camera on the defendants’ house, and that it appears to be directed towards the plaintiffs’ house.

[36] On cross examination, David conceded that the police attended at his property on September 4, 2013 with respect to this camera, but took no action.

[37] A short time later, the direction of the camera was changed so that it appeared to be facing slightly to the right of the plaintiffs’ windows.

[38] David next described photographs 38 and 39, which he said showed a second security camera on or near the defendants’ balcony door. The camera was approximately 20 feet off the ground and pointed at the plaintiffs’ front yard and driveway.

[39] David described a third security camera in the middle fence between the two yards. He discovered this camera in early October 2013, and the camera was pointed at the plaintiffs’ backyard. It is shown in photographs 48 and 49 at Exhibit 4, Tab D.

[40] David described a fourth security camera attached to where the newest fence attaches to the mid-fence. This camera was approximately 4 feet off the ground and aimed at the defendants’ driveway and front yard. The picture of this camera is shown at Exhibit 4, Tab D, photograph 62.

[41] After discovering this camera, David called the police.

[42] This camera was removed within a few hours of the police being in attendance at the properties.

[43] David testified that the plaintiffs have eight surveillance cameras in all, and move them from time to time.

[44] Because of statements made by the defendants, David believes these surveillance cameras may also have audio surveillance abilities. Aline testified that some Swann surveillance cameras, which is the make of the camera that the defendants have, are capable of zoom video, of taking video both in the day and night time and also have audio surveillance capabilities.

[45] Aline confirmed there were numerous video cameras and at least three were mounted on the defendants’ house, on their balcony, eaves troughs and bedroom window, all on the second story and all aimed at the plaintiffs’ property.

[46] Aline testified that they found other video cameras in September and October 2013: one near the back of the middle fence and aimed towards their back deck and pool area; one near the wood stove exhaust in the centre of the defendants’ home, approximately 22 feet off the ground and aimed into the back yard of the defendants’ property; and another, discovered in the new back fence.

[47] Because of the defendants’ actions and the discovery of these surveillance cameras, David had his son install four security cameras in 2014.

[48] One of these cameras is at the front of his house pointed towards the driveway and shed, a second is on the shed pointing down the driveway toward the road, a third is on the back corner of their home pointing into their backyard parallel to the property line, and the fourth is on their home pointing into the dog run and back of their shed.

[49] David stated that these cameras were installed because the police could not help and that the plaintiffs needed security, and that the videos could potentially become evidence.

[50] David testified that none of these cameras are high enough to look over the fence between the properties and therefore look into the defendants’ yard, and none of them are equipped with audio surveillance.

[51] In cross-examination, Aline testified that she did not know for sure whether or not the plaintiffs’ security system had audio capabilities.

Trespasses

[52] David accuses the defendants of trespassing approximately six times on the front of his yard by the driveway. The alleged trespass occurred where the number 24 is found on the survey, which is Exhibit 1. Further, David notes at least one other trespass, found where the number 0.9 is found on Exhibit 1, near the end of the middle fence.

[53] These trespasses are in addition to the two trespasses David described earlier, when he saw Richard in the back of his property at night.

[54] With respect to the two trespasses in the plaintiffs’ backyard, David testified that although there had been some minor disagreements between both sides up to that point in time, they could still talk to each other. Notwithstanding this statement, the plaintiffs never discussed the two alleged nighttime trespasses in their backyard with the defendants.

[55] On cross examination, David stated that he thought Richard had also trespassed on the roof of his house because the metal roof was damaged, however he offered no proof other than his suspicion.

[56] Aline confirmed that on October 1, 2013, just before midnight and while working late in her office, she heard a noise outside. She went out to investigate, but it was dark. The next day when she checked the video cameras she could see the silhouette of a person. While she suspects it was Richard, she could not confirm this.

[57] She testified that there had been a great deal of activity during the early morning hours on their property and other surrounding properties, and up to four flashlights in the area.

[58] David also suspects the defendants are behind unidentified vehicles that would pull into the plaintiffs’ driveway and sit for a minute or so and then leave. He did not give any indication about how many times this occurred.

[59] There are no allegations made by the defendants with respect to any trespasses perpetrated by the plaintiffs. This is because they did not counterclaim in this action.

[60] On cross examination, David testified that he did not go onto the defendants’ property to remove that portion of the middle fence that was on his property, and he did not go on the defendants’ property to remove and further trim any of the branches with respect to the seven fir trees. However, he agreed that some of the mulch, which he placed on his property near the fence, may technically be on the defendants’ property.

[61] Aline testified that there were six survey stakes placed by the plaintiffs’ surveyor along the boundary line in late August 2013, and they were in a straight line.

[62] She testified that during the construction of the back fence, three of the stakes were removed. While she did not see anyone remove them, they were no longer in a straight line when they were replaced, and were not hammered into the ground as deeply as they had previously been.

[63] It was Aline’s evidence that the stakes had been moved approximately 6 inches, and rather than being in a straight line, now made a line that was bowed into the plaintiffs’ property.

[64] The plaintiffs also allege numerous trespasses on their property within one or two feet of the boundary line.

[65] Aline also testified that Tania planted a spruce tree on their yard near the lot line, after specifically being told she was not to plant anything on the plaintiffs’ property.

[66] Although she did not see them being removed, Aline testified that the defendants removed two trees approximately 15 feet high from the property just north of that part of the middle fence which dissected the property line.

[67] On cross examination, Aline agreed that Heintz Kaminski’s widow (their previous neighbour) had cut a tree on their property, but they did not pursue any action.

[68] Further, Aline also confirmed on cross examination the discussion she had had with Tania when they first moved in, where she told her that the boundary line was north of the seven fir trees. She followed this up by giving Aline a printout of a GIS locator which she agreed would not be 100% accurate.

[69] In response to the question of why the plaintiffs did not have a surveyor out to confirm whether or not the surveyor stakes had been moved, she stated that there had been enough surveyors out to the property already.

Threats

[70] On the occasion that David decided to trim all of the lower branches on the front four trees, he noticed Richard come on to his driveway waving his arms saying something to the effect of “what the fuck are you doing”. After some discussion, David said Richard warned him to be careful of what branches he cut.

[71] Approximately two weeks later, when David was finishing trimming the front trees, he heard a voice and saw Richard walk out from behind a shed near the fence on the defendants’ side of the property.

[72] David said something to the effect of, “what the fuck, get out of there, what are you doing there”.

[73] David testified that Richard then said, “if you touch another limb on any tree I will sue you”.

[74] At another point Richard is alleged to have said on three separate occasions that they, meaning the defendants, hear everything. This is what led the plaintiffs to believe that the defendants had them under audio surveillance as well as video surveillance.

[75] The thought that the defendants had their property under audio surveillance caused the plaintiffs to start whispering and keep their windows closed as much as possible.

[76] Aline put a sign out the front to warn her clients that the property was under audio surveillance so that they would not talk out loud when they were outside her office.

[77] She confirmed that they kept their windows shut as much as possible, even though it was difficult because they do not have central air conditioning.

[78] Despite this evidence, the plaintiff never approached the defendants or contacted the police with respect to possible audio surveillance of their property.

Other Issues

[79] David accused the defendants of leaving debris, including concrete and dirt and other branches on his property after they built the front fence. No pictures of the debris were tendered as evidence.

[80] In August 2013, the defendants hung tarps stretching from the top to the bottom of the front fence. At some point in time Aline stated out loud that those tarps will come down. This was overheard by Tania who became upset, and while standing nose to nose with Aline stated, “if you touch those fucking tarps we will sue you”.

[81] It was shortly after this incident that the defendants installed the video cameras.

[82] The plaintiffs also complained that on numerous occasions, hockey pucks and balls came over the fence onto their property. Despite their requests for the defendants’ son to stop shooting pucks essentially at the fence, the problem continued. On one occasion, while the plaintiffs were in the driveway trying to get a very young granddaughter out of a car, a puck came over the fence onto the driveway three times.

[83] David testified that this happened despite his yelling at the son to stop.

[84] On another occasion David testified that when there were some renovations going on at the defendants’ house, numerous drywall screws appeared on his driveway and some of them had drywall dust on them.

[85] David testified that during the third week of May 2015, while he and his wife were working in their front yard, Richard came out on his balcony and called Aline “a disgusting pig”. When David shouted something about keeping the peace, Richard went back into his house.

[86] After the issuance of the peace bond, the plaintiffs got a new puppy. When David was out walking the dog, he tried to avoid passing Richard on the street. However, Richard walked with his dog up to where David was standing and tried to engage him in conversation.

[87] On another occasion when the peace bond was still in force and when Richard had the chance to walk his dog, either away or towards David, he walked towards him.

[88] David accused the defendants of using wood screws that were too long when they built his fence, such that the sharp part of the screws protruded past the wood and were dangerous both for his granddaughter and his dog.

[89] The screws, which appear to be what I would refer to as deck screws, are shown on Exhibit 4, Tab E, pictures 69 and 70. The screws appear to be extremely sharp and also appear to extend approximately 1 ½ inches past the wood on the plaintiffs’ side of the fence.

[90] When asked, however, the plaintiffs stated that they never asked the defendants to remove the long screws and replace them with screws of an appropriate length.

[91] After completing the fence and building it in such a way that the horizontal two-by-fours, which would appear on what might be described as the structural/uglier side of a fence, were facing the plaintiffs’ yard, the defendants started to methodically remove the vertical boards, paint them orange, and replace the boards on the fence with the orange side of the board facing the plaintiffs’ property. Pictures of both of the above descriptions are found in Exhibit 4, Tab J, photographs 91 and 92. After approximately a month and a half, the defendants removed the orange boards and restored the fence to its natural wood colour.

[92] In cross examination, Aline testified that they had spoken to the township about the defendants’ bright lights, tarps on their fence, and an ant infestation that the plaintiffs thought might have been as a result of the defendants digging and installing a retaining wall, and also whether or not there was a tree bylaw because the defendants had planted Linden trees, which the plaintiffs stated attracted bees and made it more difficult to use their pool and back yard.

[93] Both parties received a letter dated October 20, 2014 from the Township of North Dumfries (Exhibit 7, Tab 8), which read:

It is the Township’s understanding that there are ongoing neighbour disputes and civil actions between the property owners at the above-noted addresses. The Township has entertained several disputes from both property owners which at times have been noted to be frivolous or vexatious in nature.

This letter is to inform you that the Township of North Dumfries will no longer be attending to municipal bylaw enforcement complaints as per the Townships Bylaw Enforcement Policy # 09–001–01, save and except for complaints that relate to an immediate threat to health and safety of the person or persons.

[94] Aline testified that after this letter, the defendants put up horizontal extensions on their fence.

[95] Somewhat in keeping with the township’s October 20, 2014 letter, the plaintiffs were advised by a police officer on December 16, 2015, (Exhibit 2, Tab 16):

Advised complainant to refer all future neighbour-based complaints to the CRO officer. Not a patrol matter.

[96] The CRO (community relations officer) was Paul Heath, who was available to arrange for mediation services in these types of situations.

New Rear Fence and Realignment of Middle Fence

[97] At some point in time the defendants started to build a new fence from the back of their property. They did this without any discussion with the plaintiffs.

[98] The defendants had Jay Fencing quote on removal/realignment of part of the middle fence. They did this without any discussion with the plaintiffs, but the defendants never proceeded to hire Jay Fencing.

[99] The plaintiffs allege that after commencing construction of the new rear fence, the defendants moved some red survey stakes 6 to 12 inches onto their property. The plaintiffs did not have the surveyor re-attend at the property to confirm whether or not the stakes had been moved.

[100] In April 2014, the plaintiffs began removing that part of the middle fence that encroached on their property. The defendants returned home when the job was about 99% completed, at which time heated words were exchanged between Aline and Tania.

[101] David testified that on the next day, Richard came through an opening in his fence onto the defendants’ property and aggressively asked if he had permission to remove the middle fence and plant trees.

[102] At that time David alleges Richard destroyed two of his cedar trees and removed a no trespassing sign off the plaintiffs’ property. There was apparently a lot of yelling and swearing by both sides. Richard threatened to sue the plaintiffs.

[103] Aline testified that before this event, Richard had told David in a discussion she overheard, that the middle fence was an eyesore and should come down. In addition, Richard had built the new rear fence far enough towards the front of his house that it went between his house and the old middle fence, rendering the old middle fence obsolete.

[104] The defendants had purchased 55 cedar trees for $660, and therefore the value of two trees would have been $24.

[105] No pictures were taken of the damage David claims was done to the trees by Richard, either at the time of the event, a few days later when David said they started dying, or approximately a year later when they were removed by David. There was no expert evidence called with respect to the cause of death of the trees.

[106] At this point in time, David testified that he tried to de-escalate matters and while there was clearly some anger, he thought they were making some progress.

[107] Unbeknownst to David, Richard recorded their conversation and later accused David of threatening him.

[108] A few days later, the police came to the plaintiffs’ property three times in four days. On one of those occasions an emergency response team came with three or four officers dressed in fatigues in three or four vehicles.

[109] It appears from Exhibit 2, Tab 12, page 66, that at least one of the officers who attended was dressed in fatigues rather than the more normal blue police uniform because he was a member of the emergency response team. It appears that on this day, this officer was patrolling in a police car dressed in his fatigues.

[110] The plaintiffs’ granddaughter was particularly upset and she was afraid the police might take her “Papa” to jail.

[111] At this point in time David decided to move out of his home for a week so the defendant would stop calling the police. He spent $253.75 for room and board during that week.

[112] After the peace bond and after David returned home, the situation in the plaintiffs’ home was very stressful, and it was decided that it would be better for their granddaughter if their son and granddaughter moved from the plaintiffs’ home.

[113] In May 2014, David was served with a summons to appear in court.

[114] The date of the complaint by Richard was dated May 1, 2014 for the incident which occurred on April 20, 2014.

[115] There was a hearing with respect to a peace bond on June 5, 2014, at which time the Justice of the Peace ordered a peace bond for one year. The cost to the defendants was $904 for their initial legal bill and $2,500 for legal services with respect to a possible appeal which they decided against, because the appeal would likely not be heard before the year was up.

[116] On May 22, 2014, the plaintiffs received a letter from the defendants’ lawyer accusing them of 12 enumerated instances of trespass and nuisance, which, in essence, are extremely similar to the allegations the plaintiffs make in this lawsuit against the defendants.

[117] Although the defendants threatened legal action, they did not commence any, and did not pursue a counterclaim in this action.

Floodlights

[118] David testified that the defendants shine intensely bright lights at their home at night. The lights are so bright that they had to install blackout curtains. David described the lights as being bright enough that they could blind you if you look directly at them.

[119] On cross examination, David testified that they would complain to the police about the defendants’ floodlights each time the police attended at the residence, and the police would always say that they would go and speak to the defendants. Notwithstanding that the issue was not resolved, at least to the plaintiffs’ satisfaction, he did not specifically call the police so that an incident report would be started.

[120] When asked about the plaintiffs’ floodlight in their dog run, Aline, on cross examination, testified that the light was approximately 5 feet off the ground and had to be plugged into a receptacle to turn it on. She testified that she would plug it in when she went out at night to tend to her dying dog, and then unplug it when she left. However, on one occasion she admitted to forgetting to unplug the light so that it stayed on during the night. She added that the light was directed slightly downward and that there was an 8 foot fence between the two properties.

[121] It was in response to this one event when Aline forgot to unplug the light that the police attended at their house at 3:00 in the morning.

Exhibit 6 – Defendants’ CD-ROM

[122] David testified with respect to several pictures and extremely short videos on the CD-ROM.

[123] In general, the pictures show two well-maintained homes on deep well wooded lots.

[124] There were numerous pictures of both parties’ backyards, which show the fences in question, the seven fir trees along with some smaller trees, mulch on the ground, and tarps that at one time hung down from the top of the defendants’ front fence.

[125] David accused the defendants of having to trespass on his property to take many of the photos. These included at least one photo taken from the plaintiffs’ backyard and several photos taken along the plaintiffs’ side of the fence.

[126] With respect to a picture taken December 12, 2013, David testified that the two red stakes with flags on them were moved because when they were replaced they were not hammered in as far as they originally were, and the old soil line on the stake was visible.

[127] With respect to a picture taken on April 4, 2014, marked as number 2, David testified that the picture showed two floodlights approximately 20 feet up on the back of the defendants’ home. These lights are very bright, frequently turned on and one light is pointed at the plaintiffs’ windows.

[128] There were several pictures showing a bright light shining in the direction of the defendants’ home, and David testified that this was a construction light owned by and on the property of his other immediate neighbours on the other side of his home, named Ted and Sharon.

[129] David testified that the construction light remained in its same location for approximately two to three weeks.

[130] A picture dated May 3, 2014, and designated as DSC 02823, shows a flood light emanating from the plaintiffs’ property through a door like opening in the defendants fence. David testified that his wife put the light there to block/foil one of the defendants’ surveillance cameras.

[131] A picture taken December 23, 2015, designated as number 130534, shows one of two outdoor speakers that the defendants installed. David testified that the music was often turned up to extreme levels and often as early as eight or nine in the morning and as late as midnight to 1:00 a.m. in the evening.

[132] David testified that one of the speakers was on a pole ten feet in the air and pointed in the direction of the plaintiffs’ house. He testified that the noise made it very difficult for them to enjoy their property.

[133] David further testified that the speakers were used extensively in 2014 and 2015, but with much less volume in 2016.

[134] Aline essentially confirmed the defendants’ speaker use, and the annoyance that it caused to the plaintiffs.

[135] On cross examination, David testified that the plaintiffs had not made any complaints about the noise to the defendants, the township, or the police.

[136] A picture taken December 24, 2015, and designated as number 001658, showed what appeared to be four bright lights on the balcony of the defendants’ house, facing the plaintiffs’ house.

[137] Several very short videos of the defendants were shown as follows.

[138] One dated September 9, 2013 titled “her clearing our land to later erect sign”. The video appears to show Aline in the middle of her backyard bending down and picking up sticks.

[139] One dated October 4, 2013, titled “snooping with flashlight”. The court did not notice any snooping.

[140] One dated October 14, 2013, titled “snooping into our yard”. The video appears to show David’s father-in-law standing on the pool deck looking over the fence surrounding the deck.

[141] One dated November 4, 2013, titled “putting up larger sign”. This video appears to show Aline putting up a sign in the back of the defendants’ property.

[142] One dated November 12, 2013, titled “pointing shed light into our living room”. This video is taken from a camera on the upper balcony of the defendants’ home directed into the shed area of the plaintiffs. It is difficult to tell where the light is pointing, and also difficult to tell whether or not the light would have the ability to clear the defendants’ very high fence, even if it was directed at their home.

[143] One dated March 30, 2014, titled “getting granddaughter to trespass”. This video shows a young girl approximately five or six years old approaching the opening in the defendants’ fence from the plaintiffs’ side of the fence, but at no time does she pass through the opening to the defendants’ property.

[144] One dated May 2, 2014, titled “on hill picking up sticks and snooping”. This video shows Aline approximately in the middle of her back yard picking up sticks, which David testified they did each spring and fall.

[145] One on May 2, 2014, titled “on hill staring over fence”. This video shows Aline in the middle of her backyard, approximately 20 to 30 feet from the defendants’ fence.

[146] There was a video and perhaps pictures of a bright light aimed in the direction of the defendants’ home, however David testified that, that light belonged to Ted and Sharon.

[147] One dated May 3, 2014, titled “spotlights 1l:00 p.m.”. This spotlight illuminated trees on the plaintiffs’ property and was pointed up the hill in their backyard. David testified it was there for a short time while the plaintiffs’ video camera was malfunctioning. Later in the video, Ted and Sharon’s construction light comes into view.

Joshua Breau

[148] Mr. Breau is a 29-year-old son of Aline and is knowledgeable with respect to personal computer repairs and has experience installing several security systems.

[149] He lived with the plaintiffs and his daughter until he moved out in August 2014.

[150] He confirmed there were at least four surveillance cameras on the defendants’ property, and he testified that at least two of them were facing directly into the plaintiffs’ yard.

[151] He installed the plaintiffs’ four security cameras and confirmed that they were aimed at sections of the plaintiffs’ property and not at the defendants’ property. He specifically stated that none of them were aimed to look over the fence into the yard at 19 Main Street and none of the cameras had audio surveillance capabilities.

[152] Although he was not sure, he said he thought all Swann surveillance cameras, like the ones used by the defendants, had audio surveillance capabilities.

[153] He said it was very disconcerting to be living on a property where one was constantly under video and possibly audio surveillance.

[154] He testified that one of the defendants’ spotlights was pointed directly at his daughter’s bedroom window, and one into the plaintiffs’ backyard deck and pool area. He testified that the lights were on every night and appeared to come on at dark and stay on throughout the night. He further testified that because of the light shining at his daughter’s window, they had to put a dark cover over the window.

[155] With respect to the music, he testified that it was loud music that was sometimes dance music or a local rock radio station including the DJ and advertisements. He testified that the loud music was on during the summer months, fairly constantly both day and night, even when there were no vehicles in the driveway and it appeared that nobody was home at the defendants’ residence.

[156] With respect to trespass, he recalls seeing Richard come through the gap in the fence onto the plaintiffs’ property and just stand there. He testified that he saw both Richard, Tania and the surveyor trespass on the plaintiffs’ property. Although he did not see anybody move survey stakes, he confirmed that in his opinion, they had been moved closer towards the plaintiffs’ house because he could see an original stake hole in the ground beside the moved stake.

[157] He said he never spoke to Richard about any of the issues in this lawsuit and essentially tried to stay out of it as much as possible.

Sharon Graham

[158] Sharon lives with her husband Tim at 254 Stanley Street in Ayr, whose property is adjacent to and immediately south of the plaintiffs’ property.

[159] She confirmed that she was the photographer responsible for several of the pictures in Exhibit 4.

[160] In particular, she testified that she took pictures 34 and 35 found at Exhibit 4, Tab C. She testified that she took one of these pictures from the defendants’ granddaughter’s bedroom window, and the other from the plaintiffs’ driveway.

[161] The camera in these pictures appears to be pointed towards the granddaughter’s bedroom window.

[162] She also testified that she took pictures 63 and 66 of Exhibit 4, Tab C, which she testified showed the fence around the plaintiffs’ pool. In these pictures, Richard is in a blue jacket and another man in a ball cap. She testified that the other man in the ball cap was on the plaintiffs’ property

[163] She also testified that she took picture 88 at Exhibit 4, Tab I, which shows an approximately 8 foot section of fence facing the plaintiffs’ lot painted bright orange.

[164] She testified that the sound emanating from the defendants’ speakers was quite loud even on their property, and it played during the day, the evening and the night. She also testified that it was usually on when she went to bed between 10:00 and 11:00 p.m. She stated the music was louder in the plaintiffs’ backyard than it was in her backyard.

[165] She described the floodlights emanating from the defendants’ yard as being directed at both the plaintiffs’ and her yard. She testified that at one point in time there were three such floodlights and they were on until she went to bed. She described the lights as being pretty bright – certainly bright enough so that you could see everything in the plaintiffs’ backyard in the middle of the night.

[166] She confirmed that her husband had placed a construction light on the hill in their yard and aimed it in the direction of the defendants’ property, and that it was on for approximately a three to four week period.

[167] She confirmed that she never spoke to the defendants about the music or their spotlights. She said this was in part because Richard had told her to mind her own business on an earlier occasion.

[168] She further confirmed that the defendants were aware of the fact that Ted was going to place the construction light and aim it at the defendants’ property.

Edwin (Ted) Graham

[169] Ted is a 66-year-old electrician and Sharon’s husband.

[170] They have a good relationship with the plaintiffs and the other neighbours, except the defendants.

[171] In his opinion, the video camera at 19 Main Street looked directly into the plaintiffs’ granddaughter’s bedroom. He was very concerned about this and called the police.

[172] He said he had never talked to Tania.

[173] After being asked by the plaintiffs to keep an eye on their property while they were away, he testified that he saw Richard and another man on the lot line cut a string.

[174] He testified that he shouted approximately 40 to 45 feet across the two backyards to Richard, who he said answered him by saying “it’s my fucking string and I hate nosey fucking neighbours”. Ted testified that he did not recall speaking to Richard on any other occasion.

[175] From his vantage point in his bedroom, he said it appeared that Richard was on and off the plaintiffs’ property near the boundary line, and that his friend was on the plaintiffs’ property most of the time.

[176] With respect to light, he testified that there were four great big spotlights out the back that were not pointed into the defendants’ yard, but they shone into everybody else’s yard, including the plaintiffs’ yard and his yard. He said the lights were situated high on the back corner of the house near the eaves troughs.

[177] He testified that the lights at one time appeared to be on a motion sensor because they would come on and off in dark hours. He said the lights were more annoying to them in the winter time because they would reflect off the sun and were very bright.

[178] When asked if he ever spoke to the defendants about this, he said he did not, because when their small dog ran onto the defendants’ property, Tania came out and shouted at Sharon to remove the dog. He therefore thought he would simply get in trouble if he went on their property, so he called the bylaw officer.

[179] He asked the bylaw officer to ask the defendants to direct their lights into their own yard, however the bylaw officer, after speaking with the defendants, told him there was no bylaw with respect to lights.

[180] Ted testified that after the bylaw officer spoke to the defendants, the lights were taken off the motion sensor and left on essentially 24 hours a day, seven days a week, for at least two weeks.

[181] Ted testified that because the bylaw officer stated he could not do anything for approximately two weeks, he put a bright construction light in his backyard up on the hill, and aimed it towards the defendants’ backyard. He stopped after two weeks because this tactic did not appear to have any effect on the defendants, and he did not want to continue paying for the hydro.

[182] With respect to music, he stated that they use their deck a lot and he occasionally heard music. He stated the music, which was much louder in the plaintiffs’ backyard, was particularly noticeable on Saturday evenings when he and his wife and the plaintiffs would sit out by the plaintiffs’ pool.

[183] With respect to the middle fence, he testified that he helped David remove the old fence. He stated the old middle fence no longer looked good and was not needed because the defendant had constructed a new fence right behind it.

[184] On one occasion Ted noticed Richard come through the gap in the fence and onto the plaintiffs’ property, where he kicked their no trespassing sign and then pulled it out of the ground and threw it away. He then turned his anger on three or four of the plaintiffs’ cedar trees, which had been freshly planted.

[185] On cross examination, Ted, who is an electrician, confirmed that the bright lights on the second story corner of the defendants’ house were spotlights and not patio lights.

[186] He stated he did not personally talk to the defendants because he did not want to get arrested.

[187] When Ted complained to the township, he was told the defendants’ bright lights were not a bylaw issue.

DEFENCE

Constable Kim Spitzig

[188] Constable Spitzig went through the occasions she had attended at either of the properties because of complaints received by the police department.

[189] She attended on August 19, 2013 at 10:24 p.m. after receiving a complaint from the defendants alleging that the plaintiffs had cut tree branches, and a worry that the plaintiffs might damage their fence.

[190] She suggested to the defendants that video surveillance may help, and that the best thing to do with respect to taunting or bullying was to ignore it.

[191] In her written notes, she used the numerical police code for threats, which is 906. She testified that this was a general comment on what she was heading into and she did not recall being told about or making notes of any specific threat.

[192] Her notes also contain the police codes 935 for alcohol, and 921 for drugs, and she stated that the defendants alleged that the plaintiffs were drunk and/or on drugs and naked in their backyard.

[193] Her notes on this occasion read in part:

On Friday male neighbour cut all the branches off the trees including those on complainant’s side of property line 8 feet high. Now fence has gaps which are all through and ruin the privacy aspect of fences. Complainants did not give permission for neighbours to trim trees on their side and are angry. They erected fence because they didn’t want to have to see the neighbours and now this is ruined. Rich then put a long tarp up along their side of fence to block all the gaps and restore privacy. Temporary measure until they can afford to reboard fence and double up wood. Guthrie (David) furious threatening to call Township on them and have been name-calling.

Advise complainants to call Township themselves tomorrow and get someone to come out and assess property line legally. Also have them inspect fence and parts. Advise complainants to completely ignore neighbours as responding to their rude comments only encourages their bully tactics.

Complainants worried that neighbours will come on their property tomorrow and rip down tarps as they threatened to do so. Suggested video surveillance. Rich may have capability to set that up. That way if neighbour comes on their property it is recorded.

Gave complainants occurrence number to reference if any further problems with neighbours at 15 Main Street.

[194] On May 9, 2014, Constable Spitzig attended after the police department received a call from Tania complaining about a spotlight shining into their bedroom from 15 Main Street.

[195] She attended at 15 Main Street and saw a very bright light, however Tania asked her not to speak to the plaintiffs and stated that she just wanted an occurrence report for a legal proceeding on May 14.

[196] She testified that there were no curtains on the defendants’ bedroom windows, but cannot recall why Tania said there were no curtains. She recommended that they put some curtains/shades on the window.

[197] On May 9, 2014 she used the numerical police code for neighbour disputes, which is 931.

[198] Her notes on May 9, 2014 read in part:

Peace bond meeting scheduled for May 14.

Spoke to complainant who showed me the light. It’s secured to the neighbours roofline and does directly shine into complainants bedroom window. Complainants husband asleep so it’s only a bother to complainant right now.

Observed no curtains or shades on complainants window and complainant had a few reasons why no shades or covering on window. Putting a heavy drape or shade on window would solve this problem.

Complainant wanted occurrence number to add to her complaint against neighbours coming up on 14 th . Doesn’t want neighbours spoken to for fear of retaliation.

Light is very bright and does appear to be aimed at complainant’s window as opposed to any security measure usage. Believe neighbour has put it there to annoy complainant. Complainant doesn’t want them spoken to so nothing can be done at this point. Hopefully court session will bring some resolution here.

[199] Constable Spitzig also attended on December 16, 2015, after the police received a complaint from Aline. On this occasion she used the numerical police code for unwanted persons, which is 936.

[200] Aline told the officer that at 1:30 p.m. she saw a male person on her property taking measurements and was convinced it was a friend of the neighbours.

[201] Her notes on that occasion read in part:

Video footage shows male, white truck taking measurements of either trees or fence bordering properties, comes from around side of 19. Male wearing florescent work vest and going about business in a work type manner not sneaky or anything. Due to long standing 936 believe complainants have biased opinion and automatically assume everything is suspicious or…

Advised complainant to refer all future neighbour-based complaints to the CRO officer. Not a patrol matter.

[202] She felt there was no need to talk to the defendants and did not do so.

[203] She confirmed that Constable Livingston, who had attended at the plaintiffs’ property in June 14, 2014, was a member of the Emergency Response Unit.

Larry Hrivnak

[204] Mr. Hrivnak has 43 years of experience in the survey industry and did some of the surveying work between the parties’ properties.

[205] The company he worked for had done the original reference plan for the area.

[206] When he attended the properties, he found four survey bars that mark the southerly limit of lot 19. Those four bars are marked in black squares on the first foldout page at Exhibit 7, Tab 9, dated December 20, 2013. He also found wooden stakes put in by the plaintiffs’ surveyor, Metz and Lorentz.

[207] His concern on this attendance was the location of the fence, and he put a wooden stake where the fence crossed the lot line. As set out in Exhibit 7, Tab 9, the fence crosses the lot line, and approximately 5.46 m of the middle fence is slightly on the plaintiffs’ property.

[208] By his measurements, that portion of the fence on the plaintiffs’ property would run from 0 inches where it bisects the lot line, to .17 m, or about 6 inches at the most westerly edge of the middle fence.

[209] He attended at the properties again on December 23, 2015, this time to locate the seven fir trees. They are shown at the second foldout page of Exhibit 7, Tab 9.

[210] He testified that any discrepancies between his company’s surveys (Exhibit 7, Tab 9) and the Metz and Lorentz survey (Exhibit 1) would only amount to 1 or 2 cm.

[211] He testified that when completing his work, he stayed on the defendants’ land. He further testified that there was a gap between the rear fence and the lot line, and that the fence was completely on the defendants’ property. He did not move any stakes or notice that any stakes were out of place.

[212] There was no cross examination.

Richard Buitendyk

[213] Richard testified that when he first moved in the plaintiffs came over to meet him. During their initial conversation, there was discussion about a tree that used to be in the row of seven fir trees that have been previously discussed in these reasons. That tree had been cut down by Lucy Kaminski, the widow of Heintz.

[214] Because the deck, the pool and the plaintiffs’ yard are elevated, the defendants felt somewhat exposed. The defendants therefore discussed building the middle fence with the plaintiffs, which was agreed to by all parties. It was agreed that the cost would be split equally.

[215] He testified that in 2009 they put the middle fence in line with the trees, and that to do so they had to remove the chain-link fence in the dog run, cut down one tree and try to transplant a second tree where Lucy Kaminski had cut down a tree.

[216] Because the plaintiffs could still look over the fence from the pool deck, Richard testified that he told David he wanted to put a vertical extension on the middle fence, and also build a front fence. He also testified that he told David that if he wanted extensions he would help him so both sides would look the same.

[217] At that time he testified that David had no problem with the front fence, but would get back to him with respect to any extensions on the middle fence.

[218] After Tania was told by Aline that she didn’t want her to plant more trees in front of the seven fir trees, the defendants planted one tree in line with the row of seven trees and planted others throughout their yard.

[219] Richard testified that in August 2012, he told David he was going to build a front fence and pay for it himself. At that time he got a GIS printout to make sure he built it on his own property.

[220] He stated that neither he, his workmen nor their equipment went on the plaintiffs’ property while building the fence and trimming the trees.

[221] Because the fir trees, even with their branches removed from one side, still offered a great deal of privacy, he left 3 ½ inch gaps between the vertical fence boards.

[222] The front fence was completed in November 2012, and Richard put up extensions on the middle fence in December 2012.

[223] The defendants were very upset when David began removing branches on the front two trees on his side of the seven fir trees, without first talking to them.

[224] When Richard asked what he was doing, David replied that he was cleaning up his property to sell it.

[225] Richard told David that he should not remove any more branches that are not on his property, and Richard left with the understanding that he would not be cutting any more branches on the other five trees.

[226] The defendants accused the plaintiffs of removing their privacy, and as stated previously, the defendants did not want to see the plaintiffs, particularly Aline, working in the front yard in her bikini, nor did they want the plaintiffs to be able to see them when they were in their yard.

[227] After David removed the branches on the other six trees in late August 2013, the defendants’ slung tarps over the front fence, to the full height of the fence, to maintain their privacy.

[228] This manoeuver lead to a yelling/screaming match between the female parties about the tarps and their possible removal.

[229] The defendants called the police, and after explaining to the police that they were concerned that the plaintiffs may cut further branches, the police suggested installing video cameras.

[230] At that time Richard went to Costco and bought a box of six cameras.

[231] After Richard described the trees as being butchered, he called the township, and was told it was not a bylaw issue. He was then referred to the Region of Waterloo’s arborist, and then to the Ontario Ministry of Natural Resources.

[232] There was some discussion between the defendants and the township, region and province about boundary trees, and what rights adjoining landowners might have, with respect to those trees, but no evidence was presented at trial.

[233] Richard explained the setup of the defendants’ cameras, stating that one was on their second-story railing, and it was essentially surveying the seven fir trees. He also testified that because the trees were thick, the plaintiffs’ property was barely visible, if at all.

[234] He testified there was a second camera to the left of the upper deck that was aimed at the front tree of the seven fir trees; a third was located at the top left corner of his house pointed out along his driveway toward the road; and a fourth that was in the back of the house where the chimney is and was directed down towards the ground where they have a shed and where they have access to their basement.

[235] He said there was also a camera located inside their bedroom window, but that it had never been activated. He also noted that for a few hours there was also a camera in the fence which had also never been activated. Richard explained he had put this camera in the fence to deter Aline from looking over the fence. He agreed with the police that he should take this camera down, and did so after a few hours.

[236] With respect to allegations that one of the cameras was aimed at the bedroom window of the plaintiff’s granddaughter, Richard testified that the police investigated this allegation and told him they had no problem with respect to this claim.

[237] Richard testified that when it came to his attention that Aline had attached some string to a fence post on their property, he cut it, and in conversations with Aline he told her she could call the police if she wanted.

[238] The defendants were contacted by the township after the tarps were erected. After the defendants told the township that the tarps were temporary, the township had no problem with them. The tarps came down within a month, as soon as Richard had had time to fill in the gaps between the vertical boards of the defendants’ fence.

[239] Although they haven’t counterclaimed, Richard testified that the plaintiffs had installed a camera that was directed to capture activity on their deck area, and this led him to build a fence on the deck in December 2016.

[240] With respect to the alleged trespasses, Richard testified that he was never in the plaintiffs’ yard by the maple tree.

[241] Richard testified he never set foot on the plaintiffs’ property unless invited, and was never on the plaintiffs’ roof.

[242] Richard testified that when he put the extensions on the fence, the plaintiffs put up no trespassing signs, which were very unsightly from their vantage point.

[243] Partly in response to the no trespassing signs and because he was told by the township that a new fence bylaw would be coming that would restrict the height of fences, Richard built what we have referred to as the rear fence. This fence was built from the back of his lot, behind the old middle fence, and joined it up with the front fence.

[244] Richard testified that the fence is up to approximately 3 feet north of the lot line onto his property, and he claims that the no trespassing sign in the gap of the fence put there by the plaintiffs is on the defendants’ property.

[245] Richard testified that the gap is in the fence so that he can get to that portion of his property on the other side of the fence to maintain it. He further testified that the gap in the fence is closed approximately 95% of the time.

[246] At the picture of the plaintiffs’ dog run, at Exhibit 7, Tab 43, he testified that the plaintiffs’ solar lights are on the defendants’ property. While he said it was not a big deal, he had some concerns about the plaintiffs obtaining part of his property by adverse possession.

[247] Although the defendants never talked to the plaintiffs about the strip of land between the lot line and the fence, Richard testified that after the fence was built, he heard Aline shout about “how much land they’ve lost”.

[248] Richard denied that he ever moved or removed any of the survey stakes and further stated that his surveyor put in extra stakes.

[249] Richard testified that on the April 20, 2014 Easter weekend, after they returned home from their wedding, they were awakened the next morning to construction noises and witnessed the plaintiffs taking down the middle fence. They called the police.

[250] After attending, the police said that when it comes to fences, that is a civil matter, and that the defendants should take pictures.

[251] He further testified that to take down the middle fence, David had to trespass on their land.

[252] After the police left, Richard went to have another look, at which time he kicked the no trespass sign because he believed it was on the defendants’ property. He denied kicking any trees.

[253] At some point in time David asked to come over to speak to Richard and Tania. Tania yelled at David and was upset because all of this was happening on her birthday. Richard surreptitiously taped the conversation.

[254] Richard realized that the fence was already down, but tried to ask David about how he knew how much fence to take down.

[255] Part of the discussion was David saying that their privacy was gone, with Richard answering that the defendants had actually increased their privacy.

[256] There was a discussion about why David declined to go to mediation, to which he responded that at the time in 2013 he thought he might put his hands on Richard.

[257] At this time Richard had to try to keep Tania away from the situation, or there would have been no further conversation. After a short break they met again but it did not lead to any resolutions.

[258] After replaying the tape of the conversation, Richard was of the opinion that David would do more violence especially to the fence, so he called the police. After Constable Giovanniello listened to the tape, he told Richard that in his opinion, it was just a conversation between two individuals.

[259] Richard, however, thought it was a threat, and stated that the constable could not see David’s body language or hear his voice inflection.

Peace Bond Application

[260] The peace bond application at Exhibit 3, Tab 2, was dictated by Richard and written by Tania, except for the last three lines, which were written by David and read, “During our interactions I asked David why he declined mediation. He said because he was afraid he was going to put his hands on me”.

[261] Richard testified that after the peace bond hearing he had hoped things would quiet down, but they did not.

[262] Richard testified that the plaintiffs’ light in the dog run was pointed towards their bedroom window, and was shining on multiple nights, not just the one that Aline testified to. This light is shown at a picture in Exhibit 7, Tab 78.

[263] On Thursday, June 12, 2014, Constable Giovanniello attended with respect to the spotlight in the dog run, at which time he went to the plaintiffs’ property and came back and indicated that they were lowering a light. His notes read in part:

• neighbours at 15 Main, David Guthrie - shining floodlight into complainant’s bedroom - Guthrie signed a peace bond … While standing on balcony did not feel the floodlight was illuminating the bedroom - in fact it doesn’t face the door at all - when on ground did not see the balcony door until I flashed my flashlight on it to see where it was - floodlight bright - did not feel light was directed at bedroom

[264] In addition, Richard testified to a double floodlight installed near the top of the plaintiffs’ ladder, and another floodlight at the base of their maple tree, which shone towards the defendants’ home all night long.

[265] Richard testified that double spotlights on the back of his house are about 10 to 11 feet higher than his deck, and one is pointed down to the ground and one points to his gazebo, which is in a direction away from the plaintiffs’ house. In addition, he testified that the spotlights are on a motion sensor and therefore not on all night.

[266] Richard testified that constable Giovanniello had no problem with respect to how their lights were pointed, but he lowered the direction of his lights anyway.

[267] Richard testified that none of his security cameras were equipped with audio and that any audio heard by this court came from his cell phone.

[268] After Richard built a clothesline, Tania complained that when she was outside hanging up clothes, one or both plaintiffs would sit on their deck and stare at her.

[269] This behaviour by the plaintiffs, along with other problems in the neighbourly relationship, made Richard frustrated. As a deterrent, and in an attempt to stop the plaintiffs from “harassing” Tania, he started removing vertical fence boards, painting one side orange, and reinstalling them so that the orange side faced the plaintiffs’ property. He also installed no trespassing signs on the side of the fence that faced the plaintiffs.

[270] He testified that he did this because neither the police nor the township were helping the situation.

[271] Richard testified that he built a vertical extension to the fence so that neither party could see the other, however when Ted complained he took it down and put up a privacy wall by his fire pit.

[272] In the summer of 2016 Richard moved the clothesline to an area of his yard where the plaintiffs could not view it. He also removed all orange boards and replaced them with new unpainted boards, and he took down the no trespassing signs. He moved the light fixture at the back with the two floodlights down 18 inches, and moved all of his security cameras to below the second story.

[273] With respect to the music, Richard testified that the speakers are not capable of excessively loud noise. He further stated that, in part, they use the speakers to drown out the barking of the plaintiffs’ dog, but that did not seem to work. He further testified that the speakers were never on when they were not home, and usually not after 9:30 p.m..

[274] On December 28, 2015, Richard recorded 20 incidents of the plaintiffs’ dog barking between 6:00 a.m. and 2:00 a.m. the next morning.

[275] Richard testified that they could hear the plaintiffs’ music when they were outside, and further testified that there were no complaints about their music until the litigation started.

[276] In response to the allegation that the defendants’ lawyer sent a letter to the plaintiffs mimicking the plaintiffs’ concerns, Richard stated that they were not the same issues because the defendants did not plant cedars on the property line, take down a fence or let their dog defecate on other people’s property.

[277] Richard testified that the defendants never requested the police to send a SWAT team, they simply made a complaint and the police responded.

[278] With respect to the wildlife cameras in the plaintiffs’ backyard, the defendants were concerned that the cameras were directed towards their property. However, their fears were somewhat allayed after the police investigated.

[279] With respect to the issue of drainage, Richard testified that the township told the plaintiffs not to drain water onto the defendants’ property, yet they do so to this day.

[280] With respect to the allegation that Richard tried to get David to breach his peace bond by talking to him, Richard stated that he only went and spoke to the plaintiffs’ dog and not to David.

[281] Richard testified that any hockey pucks going on to the plaintiffs’ property were few and inadvertent. Richard stated that he had built a plywood frame around the net to stop the pucks form going onto the plaintiffs’ property, however, the wind had blown the plywood structure down just before the incident.

[282] Richard also denied causing any vehicles to be parked or driven onto the plaintiffs’ property, and further denied causing screws to be thrown onto the plaintiffs’ property.

[283] With respect to the new cedar trees planted by the plaintiff, Richard testified that, in his opinion, the trees are either directly on the lot line or on his side of the lot line. At the very least, the branches on the new cedar trees hang over the property line onto his property.

[284] Richard testified that all he wanted to do was get through this and move.

Richard’s Cross Examination

[285] Richard confirmed the positions of the cameras, that two of them were never operative, that they were never pointing at the granddaughter’s window, and that the two non-operative cameras were simply there as further deterrence.

[286] It is Richard’s position that even though the middle fence may have been redundant, the plaintiffs should have discussed the matter with the defendants before unilaterally removing it.

[287] One of the officers who attended at the properties on April 20, 2014 was constable Golden. His notes read in part:

Complainant feels its property damaged, explained that a jointly paid for fence is technically both parties fence, meaning any damage a non – criminal offence - offered advice to party who did not want the neighbours spoken to - advice was to speak to a lawyer

[288] In response to Richard’s call on April 21, 2014, Constable Giovanniello attended. His notes read in part:

• says neighbour at 15 Main Street threatened him with violence as a result of an incident that occurred yesterday - neighbour has taken down a fence - complainant called yesterday and was told it was a civil matter - neighbour told complainant to “back off or there’s going to be violence” - complainant has recording of the threat - during audio, conversation was very calm - as if two guys chatting - subject didn’t utter a threat at all but said he fears the situation will escalate - nowhere did he say he would cause of violence - advice given re civil matter - advised no criminal offence has occurred

[289] In response to these notes, Richard stated that the officer did not hear the whole recording but no explanation was given as to why the whole recording would not have been played for the officer.

[290] At the peace bond hearing a 50 second audio clip was played.

[291] Richard does not agree with the officer that there was no threat and stated that the peace bond was his idea.

[292] The peace bond application is reproduced at Exhibit 3, Tab 2. At page four, Richard stated in the application that he had been referred to the Justice of the Peace by the police, but this is not accurate.

[293] Richard’s evidence is that Constable Giovanniello told him that if he did not agree with him about the threat, he could apply for a peace bond.

[294] Also on page 4 of the peace bond application Richard stated that he was fearful that the defendant would cause personal injury to himself and his spouse and child, however it seems clear from page 5 of the application that David only stated that he was afraid he was going to put his hands on Richard, as a reason for declining to partake in mediation.

[295] Exhibit 3 Tab 3 is the information sworn by Richard where he states that he has reasonable grounds to fear and does fear that David Guthrie will cause personal injury to or will damage the property of Richard, Tania and Matthew on account of a threat made on or about the 20 th day of April 2014. Richard goes on to state that “during our interactions I asked David why he declined mediation. He said because he was afraid he was going to put his hands on me.”

[296] This statement appears misleading because while David may have said the above phrase on October 20, 2014 it clearly refers to how he was feeling a year earlier in October 2013 and would have no bearing on how he was feeling in 2014 when David and Richard were having a face-to-face discussion.

[297] It certainly appears unfortunate, that during the discussion neither party raised the issue of mediation at that point in time, when the male parties were able to have a relatively civil 31 minute conversation.

[298] On June 12, 2014 just after the peace bond hearing Richard called the police because of a light shining into their bedroom however when investigated the police said it was not directed at the window.

[299] On June 14, 2014 the plaintiffs’ called the police with respect to two cameras in their backyard. In constable Livingston & Rabidoux’s notes at Exhibit 2 Tab12 they state in part:

• ongoing issues with next-door neighbours - issue regarding camera which neighbours recently put up in backyard

• neighbour at 15 Main has camera in backyard pointed into property of complainant - complainant has peace bond - 931 ongoing for years and today over wildlife camera in backyard of number 15 - camera points back away from number 15 - not a criminal code issue civil matter only

[300] On August 1, 2014, Aline called the police over no trespassing signs. When officer Giovanniello attended, he spoke to Richard and asked if he would remove the signs, to which Richard responded he would think about it.

[301] Richard testified that he put up the no trespassing signs and painted the boards orange on the plaintiff’s side of the fence in an attempt to deter the plaintiffs from harassing and annoying Tania.

[302] Richard denied ever having called Aline a disgusting pig. He has not had a discussion with either of the plaintiffs since April 20, 2014, which is almost three years ago.

[303] When the defendants called the police on November 14, 2015 about cameras aimed at their upper balcony, Constable Brown attended and noted that it appears that the camera may be angled towards the upper balcony. However, because the balcony was clearly visible from the front street, they did not have an expectation of privacy there. He/she further explained to the defendants that this was not voyeurism.

Tania Assis

[304] Tania essentially confirmed what Richard had testified.

[305] One of her main concerns for their property was privacy. This was the reason they approached the plaintiffs, when they first moved in, about erecting the middle fence.

[306] However, it became apparent after the fence was erected that it was not high enough. It allowed both parties to look into the other’s backyard.

[307] Tania testified that she wanted a front fence because Aline would come onto their property through where the seven fir trees were. Aline would sometimes be wearing a skimpy bikini, which Tania objected to because she had a 12-year-old son. Sometimes Tania would also bring her neighbour Sharon, and they would stand looking at the defendants’ property, commenting on what the defendants were doing. It was also her opinion that Aline had often been drinking before she came over.

[308] Tania testified that the plaintiffs told them that the seven fir trees were on the lot line.

[309] She testified that erecting the front fence gave new meaning to the defendants’ use and enjoyment of their property.

[310] She further testified that she was horrified when David removed all of the branches on the seven fir trees up to a height of 8 feet.

[311] Because they had left a 3 ½ inch space between the vertical boards on their front fence, the removal of all fir tree branches totally frustrated why they had built the front fence in the first place.

[312] When she confronted David about removing all of the branches, he replied that he did not over-prune anything. He said that the plaintiffs were thinking of moving and he was just cleaning things up.

[313] Because the defendants felt their yard was now more exposed than ever, they temporarily placed the tarps on the fence.

[314] This led to a shouting match between the two female parties on a later date, which involved the tarps and the defendants’ cat.

[315] After calling the police with respect to cutting the tree limbs, she confirmed that Constable Spitzig advised the defendants to get surveillance cameras, which they did.

[316] She testified to being mortified when the police told her that after the installation of the cameras, the plaintiffs were alleging that the defendants were aiming one of the cameras at their granddaughter’s bedroom, for child pornography reasons.

[317] Partly in retaliation, she requested that the police check the plaintiffs’ cameras, and it appears that the police were satisfied that the cameras were not violating anyone’s rights.

[318] With respect to the October 20, 2014 fiasco, she confirmed that David shouted about waving a white flag and asked for permission to come on the defendants’ property.

[319] During the conversation, when David asked for permission to remove the remainder of the middle fence, and while Richard was prepared to consider it, Tania stated David could not, and that his removal of the remainder of the fence was nonnegotiable. She also testified that she heard David physically threaten Richard, and she stated that she still fears for herself and her property. She said this in spite of the fact that she knew the old middle fence would ultimately be removed.

[320] Tania said she supported the application for the peace bond because she feared for herself, Richard, her son, and their property. She said they applied for the peace bond because the police could not be of assistance.

[321] She accused David of telling her that things were going to get bad for her.

[322] She testified that after the peace bond things only got mildly better, but because the peace bond did not cover Aline, things like lights being shone onto their house continued.

[323] Tania testified that she was afraid to go to the post office for fear of being blocked in, afraid of going to the grocery store in case the defendants were there, and even of being in her own yard. She stated that she essentially lived in fear.

[324] She testified that the defendants intimidated her by standing and staring and/or muttering things each time she would go outside to use her clothesline. On one occasion she stated that Aline stood naked on her own pool deck smoking a cigarette, and when Tania came outside to hang up her clothes, Aline made no attempt to cover up. This stopped Aline from using a clothesline any further, and she stated she was also concerned about what might have happened if her son viewed Aline in the same state of undress.

[325] She stated that she talked to Paul Heath, the Community Resource Officer for the City of Cambridge, who informed her that unless she was displaying her genitals, there was nothing they could do about it.

[326] As a result of this incident, the defendants put up a vertical extension on the fence, however the township forced them to remove it, notwithstanding that it offered privacy for both properties.

[327] On occasion, when she was reading on the balcony, Aline turned the light on Tania, which essentially forced her to go back into her home.

[328] Tania denied ever trespassing on the plaintiffs’ property, moving or removing any survey stakes, parking or causing anyone to park on the plaintiffs’ driveway, or causing drywall screen screws to be put on the plaintiffs’ driveway.

[329] Tania testified that the stress created by the neighbours has affected her health, and that she has developed a major depressive disorder, and suffers from PTSD. She also testified that she has been off work since October 17, 2016, and she was hospitalized for 72 hours on suicide watch.

Paul Heath

[330] Paul Heath was the Community Resource Officer (CRO) for the City of Cambridge, which includes Ayr, from September 2012 to May 2016. One of the functions he performed in that capacity included trying to resolve neighbourhood disputes by intervening himself and or by telling the parties what services were available to them, such as mediation through Community Justice Initiatives.

[331] On November 22, 2013, he attended at the plaintiffs’ residence, and after talking to them, advised them that he would be speaking to the defendants. At that time he recommended that the parties consider trying mediation through Community Justice Initiatives.

[332] On December 4, 2013, he had a similar meeting with the defendants. During this process he advised that if they felt threatened by the plaintiffs, they could consider applying for a peace bond.

[333] He stated that he would have told all parties that they should be able to come to their home at the end of the day, relax and put their feet up.

[334] He further stated that if the issues couldn’t be resolved, they should think of selling their homes and moving.

[335] He stated that he would have told the parties that mediation would be the first step, that it is used all the time and that it is effective, but it takes both parties to work through it.

[336] In the end, the plaintiffs did not want to go the mediation route, and Mr. Heath stated he had a lengthier and more intense discussion with the plaintiffs than with the defendants.

Ken Kinnaird

[337] Mr. Kinnaird is a friend of Richard’s who helped him build the front and rear fences.

[338] He testified that neither he nor Richard stepped onto the plaintiffs’ property during the construction of either fence.

[339] With respect to the front fence, he stated that he used pruning shears to trim the ends of the branches so they would not hit the fence.

[340] For the front fence, it was his understanding that the trees were essentially on the lot line, and therefore all of their posts are inches from the tree line toward the defendants’ property.

Constable Giovanniello

[341] Constable Giovanniello attended at both parties’ residences on several occasions.

[342] On September 4, 2013, he attended in regards to an allegation that the defendants’ surveillance camera was pointing into the plaintiffs’ granddaughter’s bedroom.

[343] After speaking with both parties, doing an inspection and observing the monitor which was hooked up to all of the defendants’ cameras, he had no concerns about this allegation. In his opinion, the direction of the cameras was not invading the plaintiffs’ privacy.

[344] On September 24, 2014, he attended with respect to an allegation from Tania about the plaintiffs’ video cameras being focused on her kitchen and bedroom.

[345] After investigating, he concluded that the cameras were not invading the defendants’ privacy.

[346] On October 31, 2013, with respect to an allegation from Aline that there was a camera in a hole on their side of the fence that, she alleged, was showing her driveway, he attended and noticed that the camera was directed down the property line. After discussing with the defendants that the camera placement was not good judgment, the defendants removed it. He could not recall whether or not the camera was operational.

[347] Although he could not recall exactly what advice he gave to either party, he did indicate that he was going to contact the CRO.

[348] On October 21, 2014, he responded to a complaint from Richard, who said that David had threatened him with violence the day before.

[349] He stated that one of Tania’s concerns was that the plaintiffs might be enjoying using a part of their property that was on the plaintiffs’ side of the fence.

[350] He listened to a cell phone recorded conversation between David and Richard and concluded there was not a threat, and that their conversation under the circumstances, appeared calm.

[351] In a note he posted, which could be accessed by other officers in the event they became involved with the parties, he concluded that on this date there was no threat made, “nor even an innuendo of a 906”. A 906 refers to the numerical police code for threat.

[352] He indicated to the defendants that he would not be proceeding with criminal charges, and this seemed to upset Tania, who said she was fearful of David.

[353] He met with both David and Richard in the attempt to do a quick mediation, and in the end they both indicated they wanted peace, or calm. It was his recollection that they shook hands.

[354] His notes at the end of the day state:

• advice given re civil matter - advised no criminal offence has occurred - brought complainant out to meet with neighbour and me - tried to come to some resolution - for now matter dealt with - advised both parties to ensure no escalation - neighbour (David) advised he has no intention of causing harm - cautioned both re any mischief - both okay for now - no further action.

[355] He does not recall whether he spoke to Richard about the possibility of seeking a peace bond or laying a private information, but stated that he sometimes does this if the person does not like the fact that he will not lay a charge.

[356] On June 12, 2014, he responded to a complaint by the defendants about a light shining in their bedroom.

[357] He went to the bedroom and could see the light from the plaintiffs’ property that appeared to face the plaintiffs’ yard and house. However, from his vantage point, and on further investigation, he concluded the floodlight was not illuminating the bedroom.

[358] At 2:30 a.m. on the same day, he spoke to David and asked him to shut the light off and to readjust the light the following day, as a courtesy and to calm things down. He told David there was no reason to have the light directed towards the defendants’ property. David complied with the request and unplugged the light.

[359] He stated that there was no allegation that this particular light had been a frequent or ongoing issue.

[360] In essence, he said he was trying to avoid a tit-for-tat situation and further complaints.

[361] On August 1, 2014, he attended with respect to a complaint from Aline about the defendants having taken down part of the fence, and also having placed large no trespassing signs on their side of the fence. Aline questioned how the defendants could have removed the fence and erected the no trespassing signs without trespassing on the plaintiffs’ property.

[362] He spoke with Richard and asked him to take down the no trespassing signs to which Richard replied, “I’ll think about it”.

[363] He then advised the plaintiffs that in his opinion, no offence had occurred.

[364] With respect to a series of emails between himself and the parties, Constable Giovanniello stated that he felt like he was becoming a personal police officer for the parties. He was frustrated that they could not get along, and that he was unable to help. He stated that he felt like it did not matter what he did, he was not going to be able to satisfy both parties.

[365] Constable Giovanniello stated that he testified at the peace bond hearing.

Plaintiffs’ Submissions

Removal of and Damage to Trees and Trespasses

[366] The plaintiffs seek damages in the amount of $4,152 for the removal of two trees near the west end of the middle fence.

[367] The plaintiffs seek nominal damages fixed in the amount of $200 per trespass for seven trespasses of Richard and/or his agent when building the fence, taking photographs and kicking two of his cedar trees, for a total of $1,400.

[368] The plaintiffs seek a further $200 per trespass for the two alleged trespasses and Richard’s lurking in their backyard, for a further sum of $400.

[369] The plaintiffs seek a further $200 per trespass for a total of twelve trespasses, being one for each of Richard and his friend in the construction of the new fence, and an average of four trespasses per year for the years 2014, 2015 and 2016, for a total of $2,400.

Invasion of privacy

[370] The plaintiffs allege that the defendants had them under constant video and audio surveillance.

[371] With respect to the issue of audio surveillance, they submit that there is not a plea in the statement of defence that there was no audio surveillance, and that the court should draw a negative inference against the defendants because Richard did not produce the manual for his cameras to confirm whether or not they had audio capacity.

[372] In addition, they rely on Richard’s alleged statement that he hears everything.

[373] The plaintiffs rely on the decision in Jones v. Tsige, 2012 ONCA 32 where the Ontario Court of Appeal stated at paragraphs 70 and 71:

[70] I would essentially adopt as the elements of the action for intrusion upon seclusion, the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would [page 262] include recklessness; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish…

[374] The court went on to suggest that where the plaintiffs had suffered no pecuniary loss, damages may range up to $20,000. In Jones, the court awarded $10,000.

[375] In Jones, the defendant did not know the plaintiff had formed a relationship with the defendant’s ex-husband. For approximately four years the defendant, who worked for a bank, used her workplace computer to access the plaintiff’s personal bank account at least 174 times. The plaintiff was employed at a different branch of the same bank.

[376] The plaintiffs, in the current case, seek further damages under the heading of intrusion upon seclusion, submitting that they were under constant video and audio surveillance.

[377] With respect to the alleged audio surveillance, they submit that the court should draw a negative inference against the defendants because they did not plead in their Statement of Defence that there was no audio surveillance, and they did not produce the manual for their surveillance cameras to show whether or not they were capable of audio surveillance.

[378] They further rely on their allegation that Richard said to them “we hear everything”.

[379] The plaintiffs submit that Tania’s evidence has been undermined by her over exaggerated, dramatic, disproportionate and irrational reaction to seeing Aline nude in the plaintiffs’ backyard.

[380] The plaintiffs further submit that the defendants’ attack on their character regarding using alcohol & drugs and wearing skimpy beachwear is not pleaded, and no questions were put to the plaintiffs regarding these allegations.

[381] The plaintiffs seek further damages in the amount of $20,000 each, for a total of $40,000. They further seek a permanent injunction prohibiting the defendants from causing or permitting surveillance of the property known municipally as 15 Main Street, Ayr, and prohibiting surveillance of the plaintiffs, their guests and others, while on the property, by video camera of any kind, by other photographic devices of any kind, or by other similar means.

Nuisance

[382] The plaintiffs quote from the Ontario Court of Appeal decision in Antrim Truck Centre Ltd. v Ontario (Minister of Transportation), 2011 ONCA 419, where the court at paragraph 80 set out the test for nuisance as follows:

80 - As can be seen from this definition, the test for nuisance, at its core, commands a two-part analysis. Flemming ( The Law of Torts, 9 th ed. …) puts it simply at page 466 : “[T]o constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable (“emphasis added”): see also St. Lawrence Cement v. Barrette at para. 77. Murphy, at p. 420, explains that these elements of the test should not be viewed as mutually exclusive and that an interference that is unreasonable will also often necessarily be substantial.

[383] The court went on to state, under the heading Substantial Interference, the following:

81 - Particularly as people live in closer proximity to each other, a certain amount, arguably an ever-increasing amount, of interference with each other’s property must be tolerated. It make sense, therefore, that only substantial interference constitutes a nuisance.

82 - The requirement that the interference be substantial is a threshold aspect of the test. At this stage of the analysis, the court will exclude claims that disclose no actual interference as well as those in which the interference alleged is so trifling as to amount to no interference at all…

[384] Under the heading of Unreasonable Interference, the court stated:

83 - Whether there has been an unreasonable interference with the use and enjoyment of the plaintiffs land is a question of judgment based on all circumstances. The focus is on the gravity of the harm caused and the utility of the defendant’s conduct. As identified by the Divisional Court, this assessment is undertaken through the consideration of four factors:

1. the severity of the interference;
2. the character of the neighbourhood;
3. the utility of the defendants conduct; and
4. the sensitivity of the plaintiff.

[385] The plaintiffs submit that the defendants, excluding the instances of trespass and invasion of privacy, have interfered with the enjoyment of their property by the installation of floodlights and speaker systems pointed at the plaintiffs’ property, seemingly random verbal attacks, including name-calling across the property line, firing hockey pucks over the fence into the plaintiffs’ property and painting fence boards orange.

[386] The plaintiffs submit the defendants’ behaviour was designed to annoy and punish, and it was irrational.

[387] They seek compensatory damages of $10,000 for nuisance, and in addition, ask for a permanent injunction prohibiting the defendants from causing or permitting floodlights or other lights to be shone onto the property known municipally as 15 Main Street, Ayr or causing or permitting speakers or similar devices from being played onto the same property.

Abuse of Process

[388] The plaintiffs rely on the case of Jacobson v. Skurka, 2015 ONSC 1699, which sets out a four element test for the tort of abuse of process. The court stated at paragraph 75:

75 - There are four elements to the tort of abuse of process: (1) the plaintiff is or was the subject of a lawsuit initiated by the defendant; (2) the defendant’s predominant purpose in initiating the lawsuit was to further some improper purpose collateral or outside the ambit of the legal process: (3) the defendant performed a definite act or threat in the furtherance of that improper purpose; (4) the plaintiff was caused to suffer some special damages or losses unique to him or her.

[389] The plaintiffs in this action rely on numbers 2 and 3.

[390] In essence, the plaintiffs submit that the defendants abused a judicial process when Richard applied for a peace bond.

[391] They allege:

1. despite Richard’s concession at trial that the middle fence was rendered redundant by his new fence, he professes to have become angry about its removal;
2. when David tried to make peace, referring to the concept of a white flag, instead of participating in the discussion in good faith, Richard bated David into answering questions with respect to discussions about mediation a year before, all while surreptitiously recording the conversation on his cell phone;
3. the defendants then tried to have criminal charges laid against David by calling Constable Giovanniello to listen to the tape;
4. when Constable Giovanniello’s opinion was that there was not a threat, Richard signed an application for a peace bond and followed the process through to the end of the hearing.

[392] As set out previously in these reasons, Richard was represented at the peace bond hearing by a lawyer who practices criminal law. He also retained a lawyer after the fact with a view to appealing the Justice of the Peace’s decision, but did not follow through with the appeal.

[393] When the court raised the question of whether or not the plaintiffs were trying to re-litigate the peace bond hearing, the plaintiffs’ lawyer agreed they were, and quoted from the case of Toronto v. C.U.P.E., 2003 SCC 63, [2003] 3 S.C.R. 77, as an authority for the plaintiffs’ right to do so.

[394] The Supreme Court in that case, at paragraphs 52 and 53, stated the following:

52 - In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that [page 110] from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach the integrity of the judicial system, for example: (1) where the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results: or (3) when fairness dictates that the original result should not be binding in the new context.…

53 - The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust and unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for example the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest of maintaining the finality of the original decision…

[395] The plaintiffs point to page 49 of the transcript from the peace bond hearing (Exhibit 3, Tab 5), where the Crown starts its closing arguments by stating, “no one is alleging that Mr. Guthrie threatened Mr. Buitendyke”.

[396] The Crown did go on to state, “[i[t is very reasonable for Mr. Buitendyke to fear that Mr. Guthrie could get violent, because Mr. Guthrie believes he could get violent.”

[397] Despite the concession by the Crown that there was not a threat, the Justice of the Peace found, as set out in her reasons, that Mr. Guthrie threatened Mr. Buitendyke, based on the cell phone audio recording of the discussion between Dave and Richard.

[398] The plaintiffs submit that even if this Court does not strike down the findings of the Justice of the Peace, the plaintiffs can still proceed with their claim for abuse of process.

[399] The plaintiffs’ monetary claim under this heading consists of legal fees for the cost of their defence and assessment of their possible appeal, plus special damages for their one-week motel stay, in the amount of $3,657.75.

[400] Under this heading, the plaintiffs also claim punitive damages, submitting that the defendants’ conduct was cynical, dishonest, contemptuous, cruel and deliberate. In addition, they claim that the defendants sought to manipulate the justice system to pervert the course of justice. They therefore claim punitive damages between $5,000 and $10,000.

Defendants’ Submissions

[401] The defendants began their submissions by broadly stating that this litigation should never have been brought and they are not liable.

[402] They submit that based on the slew of allegations, the plaintiffs wanted any judgment, or to put it another way, they wanted to get something to stick.

Removal of and Damage to Trees and Trespasses

[403] The defendants submit that initially there was no survey and all parties treated the seven fir trees as the boundary between the two properties. The GIS printout appeared to confirm this.

[404] The defendants also submit that in 2009, all parties thought they were building the middle fence along the boundary and in a location agreed to by all parties. They submit that the middle fence is built along a line that extends in an easterly direction from the line of fir trees.

[405] To further their position they rely on page 2 of Exhibit 1, which shows the westerly limit of the middle fence to essentially be directly in line with the seven fir trees that are between the middle fence and the road.

[406] The defendants submit that the two trees the plaintiffs are claiming damages for under this heading were removed by Richard and David together, so that the western portion of the middle fence could be built. It is their evidence that one of the trees was cut down and the second was transplanted in the space where the plaintiffs’ former neighbour, Mrs. Kaminski, had cut down a tree.

[407] They referred the court to a picture at Exhibit 7, Tab 28, which shows the western end of the middle fence very close to the most easterly of the seven fir trees. In addition, they submit that two large or even one large fir tree would not have been able to exist north of the western edge of the middle fence, because the largest space between the western edge of the middle fence and the lot line is .9 feet, which equals 10.8 inches, as seen on Exhibit 1.

[408] In addition, they state even if the trees were removed in 2009, as stated by the plaintiffs, that claim would be statute-barred.

[409] The defendants submit that no trespasses occurred at all, and that they originally respected what all parties thought was the boundary line of the seven fir trees. Later, after having the properties surveyed, they respected the boundaries as shown on the survey.

[410] They submit that for there to be a trespass, which is an intentional tort, there must be a wrongful entry. They rely in part on the case of Henderson v. Volk, (1982), 35 O.R. (2d) 379, where, at paragraph 6, the Ontario Court of Appeal stated:

[6] The third issue is trespass. The trial judge decided that neither party was entitled to damages for trespass and I agree with his conclusion. Technically, the Hendersons may have trespassed on the Volks’ land by the erection of the fence. However, it was a very understandable mistake. The fence had been carefully constructed so that it was in line with an older existing fence. It was only the Middleton survey which revealed the error. As well, the fence could have easily been removed. In those circumstances, the fence could not have injured the reversion of the Volks and they could not, in the circumstances, maintain an action for trespass

[411] With respect to the alleged trespass on April 20, 2014, regarding a no trespassing sign and two cedar trees, the defendants maintain that the no trespassing sign was on their property. With respect to the cedar trees, the defendants point out that during David’s testimony at the peace bond hearing, he made no mention of the two cedar trees during a discussion of the no trespassing sign incident.

[412] With respect to the initial two allegations of trespassing and lurking in the plaintiffs’ backyard, the defendants submit that it never happened and that the plaintiffs are simply overly suspicious. In fact, they submit that by this time in the relationship, all the defendants wanted to do was to try to avoid the plaintiffs, and there would have been absolutely no reason for Richard to be in their backyard.

[413] With respect to the allegations of trespass by Richard on the plaintiffs’ side of the fence, the defendants submit there is adequate room for Richard to walk along on that side of the fence because Exhibit 1 shows that there is a distance of at least 1.8 feet plus the width of the middle fence. This would likely translate into something slightly in excess of a 2-foot distance, at that point.

[414] In fact, the defendants submit that Richard built the fence so that he could maintain both sides of it without having to trespass on the plaintiffs’ property.

Invasion of privacy

[415] The defendants submit that, as suggested by police, they set up the video cameras. These cameras were set up by them essentially for two purposes: one was to protect the trees, and the other was to assist in preventing people from trespassing on their property.

[416] While their cameras may have surveyed thin strips of the plaintiffs’ property, that is simply incidental to their purpose.

[417] They submit that, in particular, they never pointed a camera at the plaintiffs’ granddaughter’s bedroom. They submit that if this had been the case, and if anyone actually thought they were doing it for purposes of child pornography, surely Joshua, the father of the child who testified he saw the camera pointed at his daughter’s bedroom for a couple of months, would have approached the defendants and/or called the police.

[418] In addition, the police were called and attended because of the allegations and at the conclusion of their investigation, they had no concerns.

[419] In response to the plaintiffs’ submission that the defendants did not deny the use of audio surveillance in the Statement of Defence, the defendants drew the court’s attention to paragraph 2 of their Statement of Defence, which denies the allegations in paragraph 9 of the Statement of Claim. Paragraph 9 is where the plaintiffs claim that the defendants are keeping them under audio surveillance.

[420] They further submit that there is no audio recording attached to any of the produced video recordings, and that the only audio recording is that made on Richard’s cell phone.

[421] With respect to the comment that the defendants hear everything, the defendants submit that there is a very logical explanation for it, particularly when both parties are outside in the yard, as, for example, when the plaintiffs were discussing the removal of the middle fence with Jay Fencing, and discussions about the tarp.

[422] The defendants rely on the case of Somwar v. McDonald’s Restaurants of Canada Ltd., (2006) 79 O.R. (3d) 172, where at paragraphs 12 and 22 the court states:

[12] Based on Prosser’s description of intrusion of privacy interests and Fridman’s observation on treatment of “invasion of privacy” by courts, I conclude that the plaintiff’s complaint concerning the invasion of his property could be categorized as an intentional tort.

[22] In light of the trial decisions listed in this brief survey of Ontario’s jurisprudence, and the absence of any clear statement on the point by an Ontario appellate court, I conclude that it is not settled law in Ontario that there is no tort of invasion of privacy.

[423] The Somwar case involved an employee suing an employer for invasion of privacy when the employer conducted a credit check on the employee without his permission. The employer brought a motion to dismiss the action on the grounds that the Statement of Claim disclosed no reasonable cause of action.

[424] The case of Lipiec v. Borsa, [1996] O.J. No. 3819, involved a bitter dispute between neighbours. The plaintiffs seemed to feel they had some undefined proprietary right over the defendant’s property, including a 2-foot right-of-way along the defendant’s property from the front of their lot line to the rear of their lot line. The plaintiffs became obsessed with what the defendants were doing on their lot.

[425] The court found at paragraph 11:

That the plaintiff’s had erected a commercial style surveillance camera near the roof of their house at the east corner but aimed directly at the defendants’ yard, for no purpose other than to keep the defendants under constant surveillance.

[426] The defendants submit that in this case the police, who are independent, concluded otherwise.

[427] At paragraph 16 of the Lipiec case the court stated:

[16] The defendants have counterclaimed for damages for trespass and nuisance. In my view the plaintiffs’ conduct has been unacceptable. They have greatly reduced the defendants’ enjoyment of their property, both before and after construction. The removal of the fence and the erection of the commercial type surveillance camera was an intentional invasion of the defendants’ right to privacy. I have no hesitation in accepting the evidence of the defendants that their use and enjoyment of their rear yard has been destroyed by the conduct of the plaintiffs. Courts are slow to find liability solely on the basis of watching and surveillance but:

… There is considerable authority which could support redress against overlooking or spying on the premises of others for the sole purpose of causing annoyance and circumstances like the Balham case…

[428] The defendants submit, in part, that they did the opposite. They erected a high fence, and when it became obvious that both parties could still look into the other’s yard, they vertically extended the fence, all with the view to having more privacy from the plaintiffs. Of course, it would also provide the plaintiffs with privacy from the defendants.

[429] The defendants set up the security camera solely for the purposes previously stated of trying to protect the trees, which gave them privacy, and to prevent trespass.

[430] The defendants point out that in paragraph 69 of Jones the court stated:

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones ’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

[431] The defendants submit that they have not done anything that could be construed as deliberate, prolonged and shocking.

[432] With respect to the key features for an action for intrusion upon seclusion, set out in paragraph 71 of Jones, which has been reproduced in the plaintiffs’ submissions section of this judgment, the defendants submit that their conduct was neither intentional or reckless, that they did not invade the plaintiffs’ private affairs or concerns and that if there was any invasion, it was not highly offensive, humiliating or such as to cause the plaintiffs anguish.

[433] At paragraph 72 of Jones the court stated:

[72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy.

[434] The defendants submit that seeing slivers of the plaintiffs’ property because they wish to monitor the lot line does not rise to anywhere near the level of the “significant invasions of personal privacy” referred to in Jones.

[435] In addition, they state that the areas of the plaintiff’s property captured on the video are not private because they can be seen from the street, and can be seen through the ordinary use of the defendants’ property.

Nuisance

[436] The defendants rely in part on Antrim Truck Centre Ltd. V. Ontario (Ministry of Transportation), 2013 SCC 13, which was an appeal from the Ontario Municipal Board, and where the Supreme Court stated the following at paragraphs 22, 26, 28 & 55 of its decision:

[22] What does this threshold require? In Barrette, the court noted that the requirement of substantial harm “means that compensation will not be awarded for trivial annoyances”: para. 77. In St. Pierre, while the court was careful to say that the categories of nuisance are not closed, it also noted that only interferences that substantially alte[r] the nature of the claimant property itself’ or interfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim and nuisance: p. 915 (emphasis added). One can ascertain from these authorities that a substantial injury to the complainant’s property interest in one of that amounts to more than a slight annoyance or trifling interference. As La Forest J. put it in Tock v. St. John’s (City) Metropolitan Area Board, [1989] 2 S.C.R. 1181 (S.C.C.), actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”, not claims based “on the promoting of excessive delicacy and fastidiousness”: p. 1191. Claims that are clearly of this latter nature do not engage in the reasonableness analysis.

[26] In the traditional law a private nuisance, the courts assess, in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances: see, e.g. A.M. Linden and B. Feldthusen Canadian Tort Law (9 th ed. 2011) at p. 580. The Divisional Court and the Court of Appeal identified several factors that have often been referred to in assessing whether a substantial interference is also unreasonable. In relation to the gravity of the harm, the courts have considered factors such as the severity of the interference, the character of the neighbourhood and the sensitivity of the plaintiff: see Tock at p. 1191. The frequency and duration of an interference may also be relevant in some cases: Royal Anne Hotel at pp. 760-61. A number of other factors, which I will turn to shortly, are relevant to consideration of the utility of the defendant’s conduct. The point for now is that these factors are not a checklist; they are simply “[a]mong the criteria employed by the courts in delimiting the ambit of the tort of nuisance”: Tock, at p. 1191; J.P.S. McLaren” Nuisance in Canada”, in A.M. Linden, ed., Studies in Canadian Tort Law (1968), 320 at pp. 346-47. Courts and tribunals are not bound to, or limited by, any specific list of factors. Rather they should consider the substance of the balancing exercise in light of the factors relevant in the particular case.

[28] The first point is that there is a distinction between the utility of the conduct, which focuses on its purpose, such as construction of a highway, and the nature of the defendant’s conduct, which focuses on how that purpose is carried out. Generally, the focus in nuisance is on whether the interference is suffered by the claimant is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable. This point was made by the court in Jesperson’s Break and Muffler Ltd. v. Chilliwack District (1994), 88 B.C.L.R. (2nd) 230 (B.C.C.A.). In that case, the construction of an overpass resulted in a 40% drop in the market value of the claimant’s land. The statutory authority argued that the claimant had to establish (and had failed to do so) that the statutory authority had used its land unreasonably. The Court of Appeal correctly rejected that contention. The focus on the reasonableness analysis in private nuisance is on the character and extent of the interference with the claimant’s land; the burden on the claimant is to show that the interference is substantial and unreasonable, not to show that the defendant’s use of its own land is unreasonable.

[55] The Board’s task was to determine whether, having regard to all the circumstances, it was unreasonable to require the appellant to suffer the interference without compensation…

[437] The defendants submit that based on the following, the plaintiffs have not suffered unreasonable interference:

1. That the plaintiffs did not complain when Ted and Sharon erected their construction light shining across their backyard.
2. When Aline emailed a picture of a light to the police as a form of complaint, she was told to call an officer when the light was on so that the officer could attend and assess the situation, however Aline never made such a call.
3. With respect to sound, Ted testified that sound would travel across the plaintiffs backyard to his yard even at ambient levels.
4. They never attempted to talk to or communicate in some other form with the defendants about the lights, music or pucks.

Abuse of Process

[438] The defendants rely in part on the Ontario Court of Appeal decision in Harris v GlaxoSmithKline Inc., 2010 ONCA 872, where the court stated at paragraph 27:

[27] At paragraph 48 of his reasons, the motion judge defined the constituent elements of the tort of abuse of process as follows:

The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted…

[439] The defendants submit that all they wanted was to live in peace, and that from their perspective they had been threatened by David.

[440] They therefore embarked on using a legal process available to them by applying for a peace bond.

[441] They submit that the Crown Attorney who represented their position thought that their case had merit for the issuance of a peace bond, even if the Crown Attorney did not think there had been a threat.

[442] They further submit that the plaintiffs could have appealed the decision, but for their own reasons decided not to.

Frivolous and Vexatious

[443] Under this heading the defendants rely in part on the case of Carnegie v Rasmussen Starr Ruddy, (1994) 19 O.R. (3d) 272, with the court at paragraph 21 citing a list of principles for it to consider:

[21] From these decisions Henry J. extracted the following principles:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[444] The defendants submit that the plaintiffs are trying to roll issues forward from the peace bond hearing into this action.

Abuse of Process

[445] The defendants submit that even based on the case of Toronto v. C.U.P.E., cited by the plaintiffs, in this current case there has been no fraud or dishonesty, no new previously unavailable evidence and no fairness issue that would dictate that the original result should not be binding because of fraud, dishonesty or new evidence.

[446] The defendants further submit that even if the court were to award damages, they could only be nominal.

Findings

[447] It is extremely unfortunate that a case of this nature could not be resolved without having a time-consuming, emotionally draining and very expensive 8 ½ day Superior Court trial. Unfortunately, because of the current climate, both parties have thought seriously about moving.

[448] For some reason, which the court has great difficulty understanding, the four chronologically mature parties frequently acted with great immaturity.

[449] Somewhat like an acrimonious divorce, they refused to attempt to communicate with each other over small matters that they found irritating, and therefore the irritations grew to the point where the parties could not see the forest for the trees.

[450] Because the parties have legal representation, they would/should have been aware of the limitations in the orders a court can make in a neighbourhood dispute, as opposed to the resolutions which could be crafted through the mediation process. Did they ever ask themselves how they were going to live beside each other after whatever the court decided?

[451] In addition to the costs expended by the parties to hire lawyers, the taxpayers of the Province of Ontario, Regional Municipality of Waterloo and Township of North Dumfries have spent many tens of thousands of dollars to provide the parties with access to the justice system, police system and by-law enforcement officers.

[452] For some still unexplained reason, the plaintiffs refused to try mediation before commencing this Superior Court action. They maintained this position, notwithstanding several police officers, who were no doubt becoming frustrated by the frequent complaints by both parties, recommended that they contact the CRO, as well as the CRO attending to discuss and recommend to both parties that they should try to resolve their differences using mediation through Community Justice Initiatives.

[453] At the time that Paul Heath, the CRO, spoke with both parties, they were already well aware of the limitations that the police department and township civic employees had, with respect to trying to resolve their problems and keep the peace between them.

[454] There is no evidence before the court that possible resolution through mediation was ever discussed after both parties retained lawyers.

[455] Of course, once lawyers were retained, each party would have been able to discuss mediation and would have been able to find out the varying ways that mediation could be tailored, including the parties being able to agree on a mediator, and also being able to use more than one room for caucusing purposes if one party thought they would have difficulty remaining in a common room for a lengthy period of time.

[456] Although it is possible that mediation may not have resolved all of the issues, the following possible solutions could have been discussed and possibly turned into a written agreement. The parties could even have discussed the possibility of one party moving.

[457] With respect to lighting, the parties could have discussed the placement of lights, intensity of lights, the use of blinders to assist in keeping the light focused more on the owner’s property, hours of use, motion sensors and dimmer switches, etc.

[458] With respect to security cameras, the parties could have discussed the permissible number of cameras, the features of the cameras and in particular whether or not audio surveillance would be permitted, the positioning of the cameras and the directional focus of the cameras, etc.

[459] With respect to outdoor music, the parties could have discussed the volume at which a party would play their music, the hours that music would not be permissible, along with the positioning of speakers, etc.

[460] With respect to trespass, the parties could have discussed jointly retaining a surveyor to set three or four permanent stakes more or less in the middle of the boundary line of their properties, and in addition, how either party would get permission, if necessary, to maintain a fence or trim trees near the lot line where they may have to walk a foot or two on the other’s property.

[461] With respect to future communication, particularly in this day and age, they could have discussed using email if they were uncomfortable with calling or walking next door, and they could have also set up minimum notice standards if they were going to be doing work within a certain distance of the shared lot line or trimming branches that overhang their property from the neighbouring property.

[462] This case is also unfortunate for the fact that there were no examinations for discovery, which, in the court’s opinion, could have substantially shortened the trial.

Removal of and Damage to Trees and Trespasses

[463] Based on the evidence before me, and in particular the position of the middle fence, set out on page 2 of Exhibit 1, I find it unlikely that the two moderately large fir trees which the plaintiffs allege were removed by the defendants could have remained during the construction of the middle fence.

[464] In addition, there is no evidence of any kind that the plaintiffs complained to the police about the loss of two moderately large trees.

[465] I therefore find that the two trees were removed by David and Richard, as described by Richard during the construction of the middle fence.

[466] With respect to all of the alleged trespasses, other than the two involving lurking, I am not satisfied that they took place, and even if they did take place during the construction of a fence, I find the complaints petty in the extreme.

[467] Although a great deal of time was spent with respect to where the lot line was and whether anybody moved survey stakes, for some reason the plaintiffs did not see fit to spend perhaps a couple of hundred dollars, if that, to have their surveyor come back and independently assess whether or not stakes had been moved. Instead, the court was treated to a great deal of evidence about whether or not stakes had been moved a few inches and whether or not the defendants stepped a few inches onto the plaintiffs property on very few occasions, most having to do with the building of the fence between the two properties.

[468] With respect to the two instances of trespassing including lurking, if they did occur, it seems unusual given the vitriolic language used by David when calling out to the intruder, that he would not have called the police particularly after the second incident. In addition, it is difficult to believe, based on the plaintiffs’ evidence as to how they reacted to these two incidences that they would not have followed up in some manner with the defendants. In any event, these trespasses are alleged to have happened on only two occasions back in 2012, which is over 4 years ago.

[469] I therefore dismiss the plaintiffs’ claims under this heading.

Invasion of Privacy

[470] Some of the allegations by both parties (although there is no counterclaim) appear to be hyperbolized.

[471] The plaintiffs’ allegations that the defendants were aiming a surveillance camera at their granddaughter’s window, possibly for child pornography purposes, is one such instance. Even the father of the child did not see fit to contact the police or go next door to talk to the defendants about this serious allegation.

[472] The titles the defendants put on the video clips shown in court were simply bordering on paranoia.

[473] With respect to the video cameras on the defendants’ property, they were recommended by police, and after installation and a complaint by the plaintiffs, they were checked by the police who had no concerns about where they were pointed.

[474] There is no credible evidence that the defendants’ cameras had audio surveillance capabilities, and there was no complaint by the plaintiffs to the police that the defendants’ surveillance cameras may have had audio capabilities. Therefore the police did not investigate this allegation

[475] I therefore dismiss the plaintiffs’ claim under this heading.

Nuisance

[476] It is difficult to take the plaintiffs’ complaints seriously when they refused to communicate with the defendants regarding the lights and music.

[477] At no time did the plaintiffs attempt to invite the defendants over to their yard at night, for the purpose of viewing the lights and listening to the defendants’ music from the plaintiffs’ perspective.

[478] In addition, the plaintiffs did not ask the police to attend to view the lights at night, even though they were advised to do so by the police if they wished to file a complaint.

[479] The couple of incidences of name-calling alleged by the plaintiffs and the infrequency with which hockey pucks wound up in the plaintiffs’ yard appear to be far from the severity of interference that would rise to the level of requiring a court sanction.

[480] In addition, with respect to the puck issue, I accept that the plywood structure built by the defendants to keep this problem from occurring had been blown down by the wind and not yet repaired. This testimony is in keeping with the fact that only a few pucks made it over the fence.

[481] I therefore dismiss the plaintiffs’ claim under this heading.

Abuse of Process

[482] On the evidence before me I do not find that the defendants committed the tort of abuse of process.

[483] They testified that they were concerned both for themselves and their property, particularly the “boarder” trees.

[484] When it became evident that the police and township had limited tools to deal with the unfortunate situation, and when mediation was not available, they decided to apply to the courts for assistance. This is preferable to trying a self-help solution.

[485] There is certainly evidence that the defendants felt threatened.

[486] The defendants then filed their application, and someone in the role of a Crown Attorney decided there was sufficient evidence to proceed with a hearing.

[487] The decision-maker at the hearing, in this case a Justice of the Peace, after hearing and reviewing all of the evidence presented by both parties and their respective lawyers, came to the conclusion that a peace bond should issue.

[488] If David disagreed with this finding and wanted it set aside, he should have proceeded with the appeal that they sought legal advice on.

[489] On the evidence that I have referred to in this judgment, and the evidence that I accept, I do not find that the hearing before the Justice of the Peace was tainted by fraud or dishonesty. There is no previously unavailable evidence that would conclusively impeach the original results, and since the issue of the peace bond does not impact on my decision in this civil proceeding, the issue of fairness in the context of Toronto v. C.U.P.E. does not apply.

[490] I therefore dismiss the plaintiffs’ claims under this heading.

[491] The defendants are entitled to their costs of this action.

[492] If the parties are unable to agree on costs, Ms. Ilavsky shall forward her brief submissions on costs to me by March 27, 2017. Mr. Winny shall forward his brief response to me by March 31, 2017. Ms. Ilvasky shall then forward her reply, if any, to me by April 6, 2017. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

James W. Sloan

Released: March 20, 2017