Court File and Parties

COURT FILE NO.: CV-13-19138 DATE: 20180710 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Judith Ann Murphy Jason Andrew Murphy Plaintiffs

– and –

Timothy Mullen T.S. Mullen Farms Ltd. Defendants

Counsel: Judith Ann Murphy and Jason Andrew Murphy, acting in person Colleen Caza, for the Defendants

HEARD: January 8, 2018

Ruling on Motion

HEBNER J.

[1] The plaintiffs’ claim against the defendants is for damages, and other relief, for trespass and loss of enjoyment of property. Judith Ann Murphy (“Judith”) is the owner of a 40 acre property in Tilbury, Ontario (“Judith’s property”). Jason Andrew Murphy (“Jason”) is Judith’s son. The defendant, T.S. Mullen Farms Ltd. owns the adjacent property (“the Mullen property”). Timothy Mullen (“Timothy”) is the operating mind of T.S. Mullen Farms Ltd. The plaintiffs allege that in August – September, 2012 the defendants trespassed onto Judith’s property and, without her knowledge or consent, clear cut the trees that bordered Judith’s property and filled in a drainage ditch.

[2] This motion is brought by the plaintiffs for summary judgment on the issue of liability for trespass. The plaintiffs request judgment in their favour on the issue of liability and a hearing in order to assess damages.

Background Facts

[3] Judith’s property has been in Judith’s family for over a century. Prior to September 2012 the western boundary of Judith’s property, between her property and the Mullen property, consisted of a boundary line of mature trees. Many of the trees rested within the limits of Judith’s property. Other trees were border and straddle trees.

[4] According to the evidence of the defendants, both Judith’s property and the Mullen property are used as farmland. In 2012 both had serious drainage issues. The drainage ditch running the length of the adjoining lands was no longer functioning. It was overgrown with trees and brush, which severely restricted the flow of water.

[5] According to the plaintiffs’ evidence, sometime in the summer of 2011 Judith was contacted by Timothy to discuss his desire to clear out the ditch. Judith said she told Timothy that the plaintiffs had bought a tractor in order to clear the underbrush along the property line. Judith’s evidence is that there was never any intension on her part to clear cut the trees that lined the property.

[6] Almost a year later, on August 3, 2012, Timothy called Judith again. There are conflicting accounts of this telephone call. According to Judith’s affidavit, Timothy told her that he felt the expansive trees along the border between the two properties needed to be removed in order to fix the drainage problem. Judith claims that she did not agree to the removal of any of the trees. According to Timothy’s affidavit, he said that Judith gave her consent in that telephone conversation for Timothy “to enter onto the plaintiffs’ property for all purposes related to improving the drainage along the boundary line between the adjoining lands” in accordance with his proposed plans. Timothy said Judith consented to Timothy cleaning up the area in and around the drainage ditch, including the removal of the trees. Timothy claims that Judith asked him to save an oak log which she could use to make furniture.

[7] Both of the parties acknowledge that they agreed in that phone conversation to meet at the Comber Fair, which was scheduled for the following weekend, August 10 – 12, 2012. Judith claims that she and her family did go to the Comber Fair, however they did not see Timothy and there was no further conversation regarding the removal of trees.

[8] Timothy entered onto Judith’s property and cut down the trees that bordered the two properties. Timothy also filled in the ditch. It is clear from the pictures provided that many trees were cut down.

The Issue

[9] Timothy admits to entering onto Judith’s property. He admits to cutting trees on Judith’s property. He admits to levelling the drainage ditch. The issue in the action, then, is whether he had permission to do so.

Analysis

Trespass

[10] Trespass on someone’s land occurs when the trespasser enters onto land in the possession of another without consent or lawful justification. The concept was explored in detail by the British Columbia Court of Appeal in Webb v. Attewell. I take the following principles from that decision:

1. The concept of trespass invokes the question of consent. If a property owner has given consent for one to enter upon his or her land, there can be no trespass.
2. The true question then becomes whether the trespass was with leave and licence. If the entry goes beyond the permission given, there is, at least to the extent of the excess, no leave and licence.
3. The burden of proving leave and licence is on the person who asserts it.

[11] The conversation that took place between Judith and Timothy by phone on August 3, 2012 is crucial in the determination of the issue of consent. Both Judith and Timothy were cross-examined on their affidavits. Accordingly, I propose to review the evidence given by each of Judith and Timothy on that point.

Judith’s Evidence

[12] Judith gave the following evidence on that telephone call:

“Q. So when you spoke with Mr. Mullen on August 3 he told you about what he wanted to do on the property, did he? A. Yes. Q. Okay. And what is it that he told you he wanted to do? A. That he wanted to clean out the ditch. The scrub. Get rid of the scrub. Q. Yes? All right, so he indicated that there was some overgrowth in that hedge row and you agreed with him that there was? A. Yes. Q. Okay. And did he tell you that he wanted to put in a new ditch? A. He did. Q. And do you deny that you gave him permission to proceed with that? A. I asked that we meet and discuss it further. And that meeting was to take place at the Comber Fair the following week. In a week and a half or so after. Q. Okay. Did you clearly say anything to him that would lead him to believe that your permission was not being given? A. I asked that we talk about it. I wanted to make sure that I had an agreement on paper. Q. Did you say those actual words to him on the phone? A. No I did not. Q. Okay. Did you ask him if he could save you an oak log? A. I know that there was large trees on there, but I did not give him permission, no. Q. Okay, but did you ask him to save you an oak log? A. I do not remember saying that, no.”

[13] According to Judith’s phone records, the conversation was 16 minutes long. Judith’s evidence on the meeting at the Fair was as follows:

“Q. And you did have some conversation about meeting up at the Comber Fair? A. Yes. Q. And did you attend the Comber Fair? A. I did. Q. And where was it that you understood that you and Mr. Mullen were going to meet? A. At the Fair. Q. Did you contact Mr. Mullen when you were there? A. I was under the impression he would meet me there. Q. Did you give him a time or date? A. I told him I was going to be there on Saturday, and I was. He also knows where my relative lives in town, so I assumed that he – if I – if he did not catch up with me at the Fair he would go to my relative’s house.”

“Q. Were you only in Comber on the Saturday? A. I was. Q. Did you attend your property that day? A. I did not, my boys did. Jason and James. Q. So you had no contact with him the weekend of the Comber Fair. Did you follow up in any way? A. No.”

Timothy’s Evidence

[14] Timothy’s evidence on the conversation was as follows:

“Q. So what was said during this conversation? A. Well, in this conversation I – I told her that I’d been speaking with Jason several times over the last year or so and about cleaning the fence row and installing a new ditch, and I says I’m ready to go ahead and do that and Jason had told me that, well, he says he didn’t have permission. He didn’t have the authority to give that permission, but I would have to talk to Judy so that’s what I’m asking for right now is permission to go ahead and do it. And she replied back to me quickly that, that would be fine as long as I saved her an oak log so she could make furniture out of it. Q. Was anything else said during that call? A. Well, I – I believe I – I mentioned it, yes, she says – I could see how it may be important for you to have something to remember the historical part or whatever of the tree line and that’s why she’d like to have some furniture made from – from a log so I says I would respect that so that was another part of the conversation and then she had mentioned that she was going to be coming to the Comber Fair soon which was the end of the week, and I said that would be fine, I’d really like to – really like to meet her in person, you know, because she’s a neighbour and I’d like to, you know, meet my people and meet them in person. So at that point I was hoping and she said, well, she was kind of thinking that we’d be able to get together. So I said, that’d be fine. You come down and, I says, we’ll meet and then I can maybe show you some of the things that need to be done there with the fence row cleaning and the ditch replacement. And that’s basically how we left the conversation.”

“Q. So when the conversation ended, you agree to talk in more detail about the work at the Comber Fair; is that correct? A. Well, I was going to go – basically go over with her what I was going to be doing. Clean up the fence row and putting in a new ditch. I’d of taken her over and walked her up and down if she wanted to and – Q. And – A. (Interposing) pretty – pretty straightforward, you go in and tear out all the – all the scrub brush and you – you prepare it to – to put in a new ditch, that’s pretty much it. There’s really no details to be had, it’s just – it’s just a mess that you gotta tear out and then start over again to make – to do it right. Q. And the Comber Fair you said was going to be occurring that weekend? A. That weekend, yes, starting – usually it starts Thursday night, Friday, Saturday and then Sunday afternoon about 5 o’clock it’s all done, so she was coming down on the weekend. Q. And my understanding is that you did not actually see Mrs. Murphy at the Fair; correct? A. No, I didn’t, I – I – well, actually I – I didn’t go to the Fair that weekend, I stayed home and I waited for them to call or hopefully come over to the house and then I – you know, we’d – we’d meet and have a little friendly little talk and then carry on from there. That’s what I was hoping for and that’s what I did. I didn’t actually go to the Fair that year at all, which is something that I kind of regret, because it’s – it’s a kind of a family thing and it’s a local community thing and the Fair is a big thing in town, and that was one Fair that I did not go to.”

“Q. And to clarify, do you have any more discussions or conversations with anyone else in the Murphy family between August 3 and when you started doing the work? A. None, no.”

[15] Timothy’s evidence was that the conversation took place by a speaker phone, and a third person, a Mr. Ian Pierce, heard the entire conversation. Mr. Pierce did not provide an affidavit to support Timothy’s version.

[16] Timothy’s evidence was that he entered Judith’s property throughout the end of August and early September to complete the work. He admitted that he removed trees. He said that “the total area was all uprooted and all the sticks and many stones and debris was taken out of that area and piled up elsewhere.” He admitted filling in the ditch. On that point, he gave the following evidence:

“Q. Just to clarify, so I understand when you were digging out the large tree trunks you’re to fill those holes in. In addition to filling the holes in though, did you also fill in the entirety of the ditch? A. Well, in the process of – of taking a lot of the scrub brush out, there wasn’t really no ditch really basically left, it was all just a total area of nothing but holes and mounds and – and the disruption, so it all had to be smoothed off, levelled off, packed down in order to build another ditch or dig another ditch over top of it.”

[17] According to Judith’s affidavit, on September 14, 2012 Jason told her that he had attended at Judith’s property and discovered that the trees that bordered Judith’s property and the Mullen property had been clear cut. She attended to check for herself. She states that the trees clear cut by Timothy covered an area of approximately 2,317 feet in length by 60 feet in depth. Pictures attached to her affidavit show large mounds of trees and bush that were cut down. In his cross-examination, Timothy gave the following evidence:

“Q. And so we discussed the location of the tree line, how it ran from County Road 46 at the South to the very north end of the property. That entire tree line was removed; correct? A. That is correct, everything was removed.”

Discussion

[18] Rule 20.04(2) of the Rules of Civil Procedure provides that “the court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” Rule 20.04(2.1) sets out the powers of the court as follows:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[19] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, provided guidance on the use of summary judgment motions. At paras. 49 and 50, the court stated the following:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[20] I am satisfied that there is no genuine liability issue requiring a trial. I am satisfied that I can find the necessary facts, apply the law to the facts, and resolve the liability dispute.

[21] Turning to the issue in hand, if Timothy had leave and licence to do what he did on Judith’s property; namely cut down the trees, clear the brush and fill in the ditch, there is no trespass. If Timothy did not have leave and licence, then there is a trespass. In Halsbury’s Laws of England, 4th edition, paragraph 1406, the law is described as follows:

It is a good defence to an action of trespass to land for the defendant to plead and prove that he entered on the land by the leave and licence of the plaintiff. If the person in possession of the land gives to another person licence to enter on the land, then, so long as the licence continues and the entry is justified by the licence, the person to whom the licence was given cannot be treated as a trespasser.

If the owner of land gives permission for the doing of an act on his land and that act is completed, then, generally speaking, he will be too late to complain of it and the owner’s proprietary right will to that extent be extinguished. [Footnotes omitted.]

[22] Timothy knew that he had to obtain leave and licence from Judith. If Judith granted leave and licence to Timothy, she could only have done so in the conversation described above. There is no evidence of any other consent. Although the parties have different recollections as to the exact conversation between them, one thing is very clear. They agreed to meet at the Comber Fair where they would talk in more detail about the work to be done. Timothy said that the plan for the meeting at the Comber Fair was to “basically go over with her what I was going to be doing. Clean up the fence row and putting in a new ditch.” The meeting did not happen. Judith went to the Comber Fair. Timothy did not. Without contacting Judith again, Timothy went onto her property the Friday after the Fair and proceeded to cut down the trees, remove the brush and fill in the ditch.

[23] The defendant did not provide evidence from the individual that he said overheard the conversation, Mr. Ian Pierce. Rule 20.01 (1) of the Rules of Civil Procedure provides that on a motion for summary judgment, “the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.” Given the absence of an affidavit from Mr. Pierce, or any explanation as to why one was not provided, I draw the inference that he would not have supported Timothy’s version of the conversation.

[24] In my view, the evidence is consistent overall with a discussion as opposed to an agreement with leave and a licence granted by Judith. That discussion was to continue at the Fair. As the discussion did not continue, I find that leave and licence was never granted to Timothy to do any work on Judith’s property.

[25] If consent had been given, taking Timothy’s evidence at its best, it was to “clean the fence row and install a new ditch”. The extent of the work was never reviewed with Judith. There is no evidence that Judith gave permission to clear-cut the trees to the extent depicted in the pictures. It seems to me that, if one wishes to attend onto a neighbour’s property, cut down their trees, clear out their brush and fill in their ditch, the particulars must be explained. In Webb, the British Columbia Court of Appeal referred to Willcox v. Kettell, [1937] 1 All E.R. 222, a case between two warring neighbours, in which Clauson J. said, at p. 224:

Accordingly, I can find no express leave and licence, and I can find no circumstances from which I can infer leave and licence. It is said that Mr. Willcox was careless, and that he ought to have seen that somebody else was digging into his property. I confess that I do not take that view. He was entitled to assume that the work would not go beyond the permission that was given, and I find that it was not made clear to Mr. Willcox as to what was proposed to be done as to these bases. I think that, if Mr. Kettell had explained it, probably there would have been no difficulty. However, I am satisfied that it was not explained, and I am satisfied that the leave and license did not extend to this protrusion into Mr. Willcox’s land.

[26] I make similar conclusions here. Timothy did not make clear to Judith what was proposed to be done. Had he done so, there may have been no difficulty. However, having not done so, there was no leave and licence to do the things he did to Judith’s land. Timothy bears the burden of proving leave and licence. I find that he has not done so.

Disposition

[27] I make the following order:

1. Judgment is granted in favour of the plaintiff, Judith Ann Murphy, on the issue of liability of the defendants for trespass on the plaintiff’s property.
2. A date shall be set before me for a hearing on the issue of damages.
3. The issue of costs shall be dealt with following the damages hearing.

“Original signed and released by Hebner, J.” Pamela L. Hebner Justice

Released: July 10, 2018