Court File and Parties

COURT FILE NO.: CV-13-19138 DATE: 20200226 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Judith Ann Murphy and Jason Andrew Murphy Plaintiffs – and – Timothy Mullen and T.S. Mullen Farms Ltd. Defendants

Counsel: Nour Jomaa, for the Plaintiffs Colleen M. Caza, for the Defendants

HEARD: March 20, 21 and September 5, 6, 2019

REASONS FOR JUDGMENT

HEBNER J.

[1] The plaintiff, Judith Ann Murphy, is the owner of a 40-acre property in Tilbury, Ontario (“the Murphy property”). The defendant, T.S. Mullen Farms Ltd., owns the adjacent property (“the Mullen property”). Timothy Mullen is the owner of T.S. Mullen Farms Ltd.

[2] This action arises out of events that occurred in August – September 2012. The plaintiffs alleged that the defendants trespassed on to the Murphy property, clear cut the trees that bordered that property and filled in a drainage ditch.

[3] On January 8, 2018 I heard a motion for summary judgment on the issue of liability for trespass. For written reasons released July 10, 2018, I granted judgment in favour of the plaintiff, Judith Ann Murphy, on the issue of liability of the defendants for trespass on her property. I ordered a date be set for hearing on the issue of damages. That hearing took place in March and September 2019.

[4] These are my reasons for judgment on damages.

Background Facts

[5] The plaintiff, Mrs. Murphy, lives in Richmond, Michigan. At the time of the trial, she was employed in the school system and worked part-time test-driving preproduction cars. She has a special needs son. Mrs. Murphy hopes to retire in June 2020.

[6] The Murphy property was in Mrs. Murphy’s family since the 1920s. In 1993, the property was passed from Mrs. Murphy’s grandmother to her mother. In 1998, the property was transferred by Mrs. Murphy’s mother to herself and Mrs. Murphy jointly. In 2011, Mrs. Murphy’s mother died, and the property became Mrs. Murphy’s alone.

[7] The Murphy property is comprised of 40 acres. The Mullen property is comprised of 48 acres. Before the incidents giving rise to these proceedings, there was a row of trees and a ditch on the west side of the property, between the Murphy property and the Mullen property. I refer to the row of trees and ditch between the Murphy property and the Mullen property as the “tree line” or the “hedge row”. There was a ditch on the east side of the Murphy property. There is no house on the Murphy property. There hasn’t been a house on the Murphy property since the 1970s. According to Mrs. Murphy, she plans to build a home on the property and retire there with her husband and son. At the time of the events giving rise to this action, Mrs. Murphy rented her acreage to a farmer.

[8] Mr. Mullen purchased his property in December 2010. He immediately farmed the land. In 2011, he planted soybeans and in 2012, he planted wheat. The crop was poor as the land had been neglected and did not have proper drainage. There was no subsurface drainage. There was only a small surface ditch along the hedge row. Mr. Mullen said that the Murphy property had proper drainage by way of a surface strain funneling water into the municipal drain, but his property did not.

[9] The tree line on the west side of the Murphy property, between the Murphy property and the Mullen property, was a mature established tree line, approximately 2,000 feet long. The tree line ran from the south end of the Murphy property (at Highway 46) to the north end of the property (an old railroad track). According to Mrs. Murphy, the tree line included trees that were approximately 40 to 60 feet tall.

[10] On the other side of the Mullen property, to the west, there was a residential subdivision. Further to the west past the subdivision, there were park grounds that host the Comber fair annually. The tree line provided a sound and light barrier from the subdivision and fairgrounds. The tree line provided a home for various wildlife. It provided a wind break and a visual screen between the Murphy and Mullen properties.

[11] Mrs. Murphy first learned of the removal of the tree line in September 2012 when her son, Jason Murphy, attended at the property. She learned at the time that the tree line had been clear-cut and the ditch within the tree line had been filled in.

[12] Mrs. Murphy said that she had planned to build her home on the southwest corner of the property close to the tree line. She said the trees were important to her, and one of the reasons she wanted to build a home there. She wants the property returned to the condition it was in before the defendants removed the tree line.

[13] As evidence of the importance of trees to Mrs. Murphy, she provided photographs of her current home in Richmond, Michigan. She said she had planted over 200 trees on the property in Richmond. It is apparent from the photos she provided (one taken in 1998 and one taken recently) that a number of trees were planted at Mrs. Murphy’s Richmond property.

[14] Under cross-examination, Mrs. Murphy acknowledged that she walked the tree line on only one occasion. She said her sons had walked the tree line several times. She didn’t count the trees and doesn’t know how many of them there were. She didn’t prune the trees or clear the area of any debris. She acknowledges that there were vines and poison ivy. She said she had purchased a tractor to take out the underbrush and clean up the tree line. After the trees were cut down, she could not tell which of the trees had been on her land and which had been on the Mullen property, as the tree line is on the boundary between the two properties. She acknowledges that approximately one half of the trees were likely on the Mullen property. The ditch itself inside the tree line was on her side of the property line.

[15] Mrs. Murphy incurred an out-of-pocket expense of $6,440.59 for a survey. She obtained the survey to ensure proof of the property line and to determine if removal of the tree line had caused a drainage problem.

[16] James Murphy gave evidence on behalf of the plaintiffs. He said that he first noticed the removal of the tree line on September 14, 2012 when he attended at the Murphy property. All the trees were cut down and pushed into piles. The trees were being loaded into trucks. Photographs showing the state of the property at the time were marked exhibits. The photographs depict piles of brush and trees where the tree line had previously been. A photo of the area where the tree line used to be, with a survey stake depicting the property line, shows the current area of the entire property line as stark bare. Mr. Murphy took photos of piles of logs at the rear (or the north end) of the two properties. The logs came from the tree line. The logs have since been removed. Jason and Mrs. Murphy did not know where the logs were removed to and did not receive any compensation for the trees.

[17] When Mr. Murphy was approximately 22 years of age, he walked along the tree line and counted 300 trees. In December 2011 he walked the tree line looking for dead trees – he saw only two or three. He didn’t see any poison ivy.

[18] Mr. Mullen’s evidence of the hedge row was somewhat different. He described the hedge row as a ditch. He said there were no trees of any size in the middle of the ditch and many of them were dead. He said there were mostly poplar trees in the bottom of the ditch in the middle of the hedgerow, there was an overgrown fence and there was wire and debris.

[19] It was apparent by Mr. Mullen’s evidence that his desire for drainage on his property was the motivation for clearcutting the hedge row. He said, “I needed drainage on my property”. He said the total cost to clear-cut the hedge row and make his own ditch was approximately $30,000. After he cut down the hedge row and it was apparent that Mrs. Murphy did not agree with his actions, instead of continuing his private work he petitioned the town for a municipal drain at a cost of approximately $130,000.

Drainage

[20] Evidence was given by Paul Linton, the farmer who rented the Murphy acreage for cash crop. He said that the Murphy property was difficult to drain. He made a small ditch to encourage water to move on the property, so it did not pool in various locations.

[21] The defendant called Mr. Gerardus Rood to give evidence on the issue of drainage. Mr. Rood is a civil engineer. He works as a consulting engineer with a specialty in drainage. Mr. Rood had prepared a report on drainage at the Mullen property for the town of Lakeshore. Mr. Rood did not give evidence as an expert witness. Rather, he gave evidence as a factual witness.

[22] Mr. Rood was appointed by the town of Lakeshore in 2013, after the events giving rise to this proceeding, to prepare a drainage report. Mr. Mullen had requested that the town address the issue of drainage on his property. Mr. Rood was not involved at the time the hedge row was in existence.

[23] Mr. Rood provided some helpful background information. He said the Drainage Act, R.S.O. 1990, c. D.17, allows for a municipal drain to be created to address lands in the municipality requiring drainage. A landowner must petition the municipality for drainage, and that landowner must have an area large enough. When the requirements are met, the municipality will proceed with the preparation of a report. That is what happened in this case when Mr. Mullen petitioned the municipality for drainage.

[24] Mr. Rood first attended at the Mullen property in 2013, shortly before he was appointed to the project. Mr. Rood attended again on May 15, 2015, for an on-site meeting. Mr. Rood said that it became clear that there was no direct outlet from the Mullen property to either of the existing municipal drains, the Henry Brown drain to the south of the properties or the Goatbe drain to the north. There were significant ponding issues on the Mullen property. He prepared his report, which was finalized in 2016 and submitted it to the municipality.

[25] As a result of the report, the municipality eventually constructed a drain through the Murphy and Mullen properties to the existing municipal drains. There was an easement established for the drain. A benefit assessment was completed to determine the property owners’ respective benefits. The cost is then attributed based on those benefits. The bulk of the cost was attributed to the Mullen property as the Mullen property had had no direct access to the existing municipal drains. The total cost assessment was $102,000, with $77,032 being attributed to the Mullen property and a $24,968 being attributed to the Murphy property.

[26] The drain that was installed is a combination of open and closed drains. The open drain is along the property line. A closed drain was installed at the north and south of the properties where it met the existing municipal drains. The required ditch for the open drain is 6.2 metres. The municipality has an easement of approximately six metres plus the depth of the drain. Where the open drain turns into a covered drain, the municipality continues to have the six metre easement.

[27] When a municipal drain is installed, and the placement of the drain conflicts with brush or trees, the brush or trees are removed. The landlord may be entitled to compensation for ornamental trees (described by Mr. Rood as vegetation on a residential lot that adds to the decor). There was no issue of compensation in this case as the trees had already been removed by Mr. Mullen prior to Mr. Rood’s involvement.

[28] Mrs. Murphy said that her current plan is to plant trees along the property line as allowed by the Drainage Act. She said she started the process by obtaining a survey of the property with the new drain in place.

Expert Evidence – Plaintiff

[29] The plaintiff called Philip van Wassenaer as an expert on the issue of damages. Mr. van Wassenaer is an arborist. He received a Masters Degree in forestry in 1999, with a focus on urban forest management. He is the owner and principal consulting arborist for Urban Forest Innovations Inc., incorporated in October 2003. Mr. van Wassenaer has been a certified arborist with the International Society of Arboriculture since 1996. He has been a certified tree risk assessor since 1996. Mr. van Wassenaer was qualified as an expert in the field of urban forestry, arboriculture and plant appraisal.

[30] Mr. van Wassenaer first attended at the Murphy property March 26, 2013, approximately six months after the hedge row was removed. At that point, the entire tree line was gone. Outside of a couple of stumps, there was nothing left. Mr. van Wassenaer viewed three very large piles of tree debris. He examined pieces of wood, twigs, leaves and branches collected from the Murphy property. He identified the following species: white elm; white oak; bur oak; shagbark hickory; green ash; silver maple; red maple; poplar; and cherry birch. Mr. van Wassenaer identified cherry birch as a species at risk in Ontario. Mr. van Wassenaer determined, from his site visit and pictures, that there was a diversity of tree sizes within the tree line, from whips and saplings to large mature trees. The largest piece of wood found was the remnants of a white oak tree with a diameter of 102 cm.

[31] The loss of the trees resulted in the following: the loss of an effective visual barrier between the properties; the loss of a noise barrier from the town and the highway to the west; the loss of environmental functions of the tree line, including absorption, retention and conveyance of water and a provision of habitat for flora and fauna; the loss of the natural heritage of the property.

[32] Mr. van Wassenaer measured the former tree line area to be an average of 7.66 metres wide. The area was approximately 625 metres long.

[33] Mr. van Wassenaer used a cost to cure approach to calculate a value for the loss of the hedge row. He found this to be the most appropriate method as the cost of replacement plants can be found from tree nurseries. He said that because of the large area to be replanted and its location, supplemental irrigation will be required for a period of at least five years. Moreover, new plantings could not be left unprotected from the local deer population.

[34] Mr. van Wassenaer’s calculations can be divided into four categories: cost of plants; irrigation system; deer fence installation; parity calculation.

1. Cost of Plants

[35] Mr. van Wassenaer considered the cost of plants for 40 to 50 mm caliper replacement trees of various species. A 40 to 50 mm caliper tree is approximately 8 to 10 feet tall which would provide some limited screening. The average cost for such a tree is $150. The average cost for an installed replacement tree is $450.

[36] Mr. van Wassenaer’s planting plan provided for the planting of 431 trees along the entire length of the former tree line. In addition, he proposed that 50 poplar whips be planted along the western property line every 12 metre. The average installed cost for poplar whips is $45. He calculated the total cost of the installed trees and whips to be $221,706.

2. Irrigation System

[37] Mr. van Wassenaer obtained a cost from a local irrigation contractor. The cost to provide and install an irrigation system, hook up to the municipal water supply and water for five years totals $37,800 plus HST.

3. Deer Fence

[38] Mr. van Wassenaer said that the young trees need to be protected from the local deer population. He obtained the cost of a deer fence from Deer Fence Canada Inc. at a total of $39,750 plus HST.

4. Parity

[39] Damages for parity are intended to compensate the plaintiffs for having to wait for their new trees to grow. Mr. van Wassenaer explained the concept of parity in the form of a question: how many years will it take for the small plants to reach the size of the trees in the hedge row before the clear-cut? He said if the tree plantings are successful and continue to grow, most of the screening function at ground level will be achieved in 20 years. It will take 25 years for the trees to reach similar heights to the average tree in the removed hedge row. He set out a calculation using an interest rate and the number of years to “parity”, as applied against the present cost of $221,706, and came up with the following:

20 years to parity – $488,762.96; 25 years to parity – $595,196.50.

[40] Mr. van Wassenaer therefore calculates the total damages, including the cost of irrigation and deer fencing, to be $576,394 using the 20 years to parity approach and $682,288 using the 25 years to parity approach. He also provided a ten year to parity calculation for a total of $500,622.08.

[41] Under cross-examination, Mr. van Wassenaer acknowledged that he did not see any deer in the area on his attendances and that a permanent irrigation system is an improvement on the land.

Expert Evidence – Defendants

[42] The defendants called Trevor Robertson as their expert on damages. Mr. Robertson is a certified arborist currently employed with Hydro One Forestry. He is also the sole practitioner of his business called Urban Roots Forestry Services. He was certified as an Ontario arborist in 2005. Mr. Robertson was qualified as an expert in arboriculture.

[43] Mr. Robertson attended at the area in question in mid-February 2013, approximately five months after the hedge row was removed. He saw piles of debris and a ditch. On his inspection of the debris, he identified mostly ash trees with some white elms, poplar, red and silver maples and hickory. He saw the remains of one large oak tree. He said most of the ash trees were dead and the elm trees had a fungus. He saw a lot of vine growth and poison ivy. Mr. Robertson said that there were a few very large trees, but mostly smaller approximately 18 to 20 inches in diameter. He described the overall health of the hedge row to be in “drastic decline” except for a handful of hickory and oak trees. He said the trees would have constricted the flow of water in the ditch; that they had to be removed for a new ditch to be dug.

[44] Mr. Robertson suggested that seedlings could be planted instead of 40 to 50 mm caliper replacement trees. He acknowledged that it could take approximately 20 years for a seedling to become a tree of any size. Seedlings will grow 10 to 12 inches per year if conditions are correct. Mr. Robertson said that it is more inexpensive and less effort to plant seedlings than to plant trees. Mr. Robertson acknowledged that the planting of seedlings would result in a longer time to replace the tree line – he said he was just putting forth “another option”. Mr. Robertson said that the deer do not populate the area and the deer fence is not necessary.

Position of the Plaintiff

[45] Mrs. Murphy requests that damages be set at the total sum of $1,214,396 comprised as follows:

1. Special damages in the total sum of $714,396, being the cost of purchasing and planting trees including parity ($595,631), the cost of maintaining the trees ($87,631), the cost of the survey ($6,440.59) and the cost incurred by Mrs. Murphy for the new drain ($25,128.68).
2. $250,000 for loss of amenities.
3. Punitive damages in the sum of $250,000.

Position of the Defendants

[46] The defendants take the position that damages ought to be awarded in a modest amount. They suggest the sum of $5,000, being the cost of planting seedlings. The defendants submit that it is “virtually certain” that the trees would have to be removed eventually in order to provide drainage. They point out that the only use of the property was for farming – there were no buildings and there was no residence on the land. They point out that the plaintiff has not taken any steps to build a home and there is no evidence to support her stated desire to build a residence on the Murphy property and retire there. The defendants submit that Mrs. Murphy claims to desire to build a residence on the Murphy property simply to buttress her lawsuit.

[47] The defendants ultimately take the position that the plaintiffs’ damages are nominal and that any damages award ought to be offset against the cost of labour, materials and money expended in the clean-up of the Murphy property by the defendants and against the increase in value and use of the plaintiffs’ farmland due to improvements. Alternatively, they suggest that any award of damages ought to be offset against the cost the plaintiff would have otherwise incurred to remove the trees on her property as a result of the municipal drain that was installed pursuant to the defendants’ drainage application.

The Law

[48] Both counsel have provided extensive case law to the court on the issue of damages for loss of trees, for which I am grateful. I review some of that case law here.

[49] In Perdue v. Vanderham (2004), 26 R.P.R. (4th) 141 (Ont. S.C.), the defendants trespassed onto the property of the plaintiff and cut down approximately 47 trees without the plaintiff’s permission. The trees cut were close to 100 years old. The plaintiff’s expert calculated the damage for lost trees at $18,590.15, being $395.53 per tree. Fragomeni J. accepted that evidence and granted damages in accordance with the expert’s calculations. He also awarded damages for loss of amenities in the sum of $12,500.

[50] In Tucker v. Saunders, 2014 ONSC 4422, Pierce R.S.J. dealt with a claim for trespass. The property owned by the plaintiff was a piece of forested property in Northwestern Ontario which they had maintained in its natural state as a nature sanctuary. The adjacent landowners developed an all-weather road to improve access to their property. A portion of the road had encroached substantially on the plaintiff’s property. The plaintiff claimed that the slope of the land was altered and that many trees were cut down in the process. The court found that the defendant trespassed on the plaintiff’s property when the road was constructed. The court awarded damages totaling $93,031.95. The sum included $10,000 for trespass, $10,000 for tree replacement and $48,000 to rehabilitate the land. The court awarded an additional $10,000 for punitive damages.

[51] In Heuser v. Carnovale, 2016 BCSC 2620, the plaintiffs owned a three-acre vacant lot that was heavily treed. They planned to build a recreational home on it for their family. The defendants owned the lot next door. The lessee of the defendants’ property arranged for 32 trees to be cut down on the plaintiffs’ property. The trial judge accepted the quotation for the restoration of the trees in the amount of $18,600 and granted judgment accordingly. He also ordered the defendants pay the sum of $1,000 for loss of amenities.

[52] In Romkey v. Osborne, 2019 NSSC 56, the defendant believed that he had a 12 foot right of way over the plaintiff’s property down to the shore of St. Margaret’s Bay. The defendant went on to the plaintiff’s property and chopped down numerous trees within the area the defendants believed was their right of way. The court found that the defendants had chopped down 80 trees and awarded damages in the sum of $52,370 to replace the lost trees. In doing so, the court found that the defendant had an ancillary right to install a set of steps and a railing and that some of the trees would have had to be removed for that purpose. At paragraph 159, the court said:

It is impossible on the evidence to determine precisely how many trees Mr. Osborne would have needed to remove to build a set of steps, or the size and species of those trees. Although this makes quantification more difficult, it does not relieve the court of its obligation to assess damages. In Jeffrie v. Hendriksen, 2018 NSCA 77, Farrar, J.A. reaffirmed that, “where loss has been proven, the court must do its best to assess damages using the evidence it has available.”

[53] In Kates v. Hall, [1991] B.C.J. No. 263 (C.A.), the defendants removed 13 trees from the plaintiffs’ property. The trial judge awarded damages in the sum of $60,000. The damages award was comprised of the sum of $21,000 for restoration, $13,000 (or $1,000 per tree) for loss of amenities during the period of time it would take for the trees to reach the same height as those replaced and $2,000 per tree as punitive or exemplary damages. The plaintiffs appealed the portion of the award allocated to the cost of restoration. They asserted that the cost was not reflective of the cost to replace as nearly as possible the trees cut down. The British Columbia Court of Appeal laid out the following principles commencing at paragraph 32:

The party seeking damages must prove what those damages are or should be. The defendant can adduce his or her own evidence to refute that of the plaintiff. If the injured party has taken steps to repair the damage then the actual expenditures can be put in evidence, although even when presented with actual repair expenses the court is not bound to award that sum in compensation, see, for example, Lodge Holes Colliery Co., supra. When actual expenses are not available as evidence of the appropriate measure of compensation other evidence must be introduced. Often it takes the form of expert evidence and both parties will introduce their own expert evidence. However, the trier of fact is not required to accept one set of evidence in its entirety as packaged by one or other of the experts.

The trier of fact is required to consider and weigh all of the evidence and to apply common sense and the basic principles of restitutio in integrum, and reasonableness and fairness as between the parties in light of all the circumstances. The trier of fact is also required to draw conclusions that are supported by the evidence but there is no requirement that any of the conclusions presented to the court be accepted. As noted by Dickson J. (as he then was) for the Supreme Court of Canada in Lewis v. Todd, [1980] 2 S.C.R. 694, 14 C.C.L.T. 294, 115 D.L.R. (3d) 257 at 267-68, 34 N.R. 1 [Ont.]:

If the Courts are to apply basic principles of the law of damages and seek to achieve a reasonable approximation to pecuniary restitutio in integrum expert assistance is vital. But the trial Judge, who is required to make the decision, must be accorded a large measure of freedom in dealing with the evidence presented by the experts. If the figures lead to an award which in all the circumstances seems to the Judge to be inordinately high it is his duty, as I conceive it, to adjust those figures downward; and in like manner to adjust them upward if they lead to what seems to be an unusually low award.

[54] The Court of Appeal ultimately found no error in the trial Judge’s conclusion that the reasonable cost of restoration was $21,000. Likewise, the defendants’ cross-appeal on punitive damages was dismissed and the award of $26,000 was upheld.

[55] In Hamel v. Moilliet, [1994] B.C.J. No. 2664 (S.C.), the defendant cut down 15 trees on the plaintiff’s property. The court found that the cutting of the trees and the interference with the undergrowth affected the plaintiff’s use and enjoyment of the land. Damages were awarded in the total sum of $33,860 comprised of $6,360 for remedial landscaping, general damages of $20,000 and exemplary damages of $7,500.

[56] In Kranz v. Shidfar, 2011 BCSC 686, the plaintiffs and the defendants owned properties next-door to each other. The property line was not clearly defined. As part of a renovation project, the defendants instructed a worker to cut down a number of trees. Nine of the trees were actually trees on the plaintiffs’ property. The court awarded damages in the sum of $42,000 being the reasonable cost of remediation. The court also awarded $20,000 for loss of enjoyment of the land and an additional $35,000 for punitive damages.

[57] In Johnstone v. Manion, [1996] B.C.J. No. 974 (S.C.), the defendant trespassed on the plaintiff’s property and cut down 104 trees. The plaintiff’s evidence was that he no longer lived on the property and planned to sell it. The court ordered compensatory damages of $22,240.74 comprised of $5,290.74 for the cost of trees, loss of amenities of $5,000, clean-up and mulching of $7,500 and silviculture treatment of $4,450. The court also awarded punitive damages of $25,000.

[58] In Horne v. Burrows, 2009 NSSM 47, the court found that the defendants had cut 15 trees from the plaintiff’s lands, a treed residential lot. The court found that the action on the part of the tortfeasor was “an honest though careless mistake” (paragraph 13). At paragraph 31, the court said:

The trees in question were not ornamental trees. They were mature, native trees, and while not dead, probably not all that healthy. However, even trees that are less than healthy can stand for many years and continue to contribute to the aesthetic value of wooded land. Removing them can fundamentally alter the feel of the land.

[59] The court did not accept either of the parties’ calculations on damages. Instead, the sum of $250 for each of the trees was awarded, for a total of $3,750.

[60] In Horseshoe Bay Retirement Society v. SIF Development Corp., [1990] B.C.J. No. 201 (S.C.), the plaintiffs were owners and occupiers of heavily wooded residential properties. The court found that the defendant deliberately trespassed on the plaintiffs’ lands and cut down trees for the purpose of obtaining an ocean view to enhance the value of two houses the defendant intended to build. The court assessed the damage for each homeowner for a grand total of $33,172. Punitive damages of $100,000 were also granted.

Analysis

[61] A review of the case law shows that the determination of compensation for loss of trees is a highly fact dependent exercise. Compensation may vary depending on a variety of factors, including the intended use of the trees, their ascetic value, their economic value, the effort the plaintiff expended in planting and maintaining the trees, and the cost to replace the lost trees with new trees. Punitive damages may be awarded where the defendant’s conduct in removing the trees was high-handed or reckless.

[62] The fundamental principle for assessing damages is restitutio in integrum. The object is to place the injured party in the same position as before the tortfeasor caused the loss (Livingston v. Rawyards Coal Co. (1880) App. Cas. 25 (H.L.). The trier of fact must also consider the principles of reasonableness and fairness as between the parties in light of all the circumstances. Generally, the court will try to place the plaintiff in the same position as they were before the trespass was committed as far as having privacy restored or aesthetic beauty replaced, but not necessarily the replacement of the exact tree lost. If replacement is possible but not practicable, the court will look at what is reasonable in the circumstances.

[63] In Cooke v. Bhanwath, [1998] B.C.J. No. 1026 (S.C.), the plaintiff and the defendants owned adjoining lots. The lots were heavily treed. The defendants built a home on their lot and hired a business called North Star Tree Services to cut some trees. The tree cutter, in the course of his activities, crossed the property boundary and cut 71 trees located on the plaintiff’s property. In assessing damages, the court said:

The traditional approach to measuring damages in cases such as this is to assess the amount by which the value of the land has been diminished, and not the cost of restoration. Nevertheless, though this is the general rule, costs of repair and reinstatement exceeding any diminution of value may be awarded where those expenditures are reasonable. Any such award must be predicated on the plaintiff’s intention to do the work and make good the damage to his property.

[64] The plaintiff sought compensatory damages, to restore the trees cut from the property, at an estimated cost of $55,250. In determining reasonable compensatory costs, the court adopted the test for reasonable restoration compensation as set out in Kates v. Hall, [1989] B.C.J. No. 1358 (S.C.), as follows:

I find it appropriate to award compensatory damages in a sum sufficient to pay for the remedial work which a reasonable person without money constraints in the plaintiff’s position would have implemented had the loss been caused without fault on anyone’s part, and in addition an amount which will fairly compensate the plaintiffs for loss of use and enjoyment to the extent that this scheme will not completely replace what has been lost.

The fact that destruction of the trees was high-handed, perhaps outrageous, should play no part in the compensatory damage assessment, but should be reflected instead in a punitive or exemplary award.

[65] Counsel for the defendant suggests this court has three options on which to base an award of damages:

1. The value of the trees;
2. The decrease in valuation of the land resulting from the cut trees;
3. The cost of reasonable restoration.

[66] I do not have any evidence on the value of the trees, and in any event, I do not consider this to be an appropriate method of determining damages. The value of these trees, and indeed the entire hedge row, was in its placement. It provided the Murphy property with a number of amenities, including a screen against noise, a screen against light, privacy, and the natural habitat. Moreover, I accept the plaintiff’s evidence that she intended to build a home on the property. The Murphy property was in her family for generations. The plaintiff is close to retirement age and has family in the Comber area. I accept her evidence that she intended to build that home in the southwest corner of the property close to the place where the hedge row used to be. I also accept the plaintiff’s evidence that trees are important to her, that she enjoys being surrounded by trees, and that she intended to keep the trees in the hedge row for privacy, a light and noise screen from the sub-division and as a habitat for wildlife.

[67] We do not have any evidence on the change in valuation of the Murphy property as result of the clear-cutting of the hedge row. I also do not consider this to be an appropriate method of determining damages. The value of the property to Ms. Murphy is more than the market value considering the history of the property in her family.

[68] That leaves me with the cost of reasonable restoration. In my view, the appropriate approach would be that taken by the court in Kates v. Hall, namely the amount sufficient to pay for the remedial work that a reasonable person in the plaintiff’s position, without monetary constraints, would pay to repair the property had the loss occurred without anyone’s fault. In determining that amount, I consider the following:

1. The trees were not ornamental trees. They were trees in the hedge row between two parcels of land used for farming crops.
2. I accept Mr. Murphy’s evidence that he counted 300 trees when he walked the property prior to the removal of the hedge row. There was no evidence as to how many of those trees were on the plaintiff’s property as opposed to the defendant’s property.
3. The ditch and the hedge row ran the entire length of the property. The ditch was overgrown. Neither of the parties, nor anyone else, maintained the ditch and hedge row area.
4. The ditch had provided drainage for the Murphy property.
5. The Mullen property had significant drainage issues. The defendants cut down the hedge row and filled in the ditch as a step towards repairing the drainage issues on the Mullen property.
6. After the hedge row had been cut and the ditch filled in, the plaintiff experienced drainage problems on her property. It was for that reason that she co-operated with the defendant and the municipality in the installation of the municipal drain.
7. The plaintiff has not, since 2012, taken any steps towards replanting the trees, nor has she taken steps towards building her home on the property.
8. By the time the plaintiff discovered that her trees had been cut, many of them had been removed from the property. Of those that were remaining, it was impossible to tell which trees had been on her property and which trees had been on the Mullen property. As a result, it is impossible to tell with any degree of certainty the species and size of the trees that were on her property.
9. Now that the municipal drain has been installed along the property line, the trees cannot be planted in the same position given the municipal easement.

[69] The defendant takes the position that the trees would have had to have been removed in any event given the placement of the municipal drain. I do not accept that submission. If the hedge row and ditch had remained in place, the plaintiff would most likely have opposed their removal to accommodate a municipal drain. The drain could possibly have been placed in a different location, or different drainage options could have been considered and/or implemented. It is not certain at all that the trees would have had to be removed to accommodate the drain.

[70] How much, then, would a reasonable person in the plaintiff’s position pay for remedial work? Taking all of the circumstances set out herein into account, and particularly in light of my acceptance of the plaintiff’s evidence that she intends to build a home on the southwest corner of the property and retire there, it is my view that a reasonable person in the plaintiff’s position would arrange for the planting of trees along the property line for a portion of the length of the former hedge row. A reasonable person would, in my view, wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. A reasonable person would, in my view, refrain from planting trees on the entire length of the former hedge row given that the north end of the property is intended to be used for farmland. The former hedge row was 610 metres long. A reasonable person in the plaintiff’s position would, in my view, plant trees along one third of the length of the former hedge row, or approximately 200 metres.

[71] I accept Mr. van Wassenaer’s evidence in so far as the cost of planting trees along the property line is concerned. It seems to me reasonable that 40 to 50 mm caliper trees to be used as replacement trees is appropriate. The use of seedlings is not appropriate, given the length of time it would take for seedlings to become trees. The total cost calculated by Mr. van Wassenaer was $221,706. I use one third of that, namely $73,902 as the approximate cost of planting trees along one third of the property line. Mr. van Wassenaer calculated the irrigation system at $37,800 based on the entire length of the hedge row being replanted. I expect the cost for irrigation will be something less than that, but more than one third. I accept Mr. van Wassenaer’s evidence that an irrigation system is necessary. I assess the amount of $20,000 as the reasonable amount for installation of such a system along one third of the former tree line. As for the deer fence, I accept Mr. van Wassenaer’s evidence that the fence is necessary in order to protect the new trees from the deer population. I would take one third of that cost, or $13,000 as the appropriate amount. The total is $106,902.

[72] The plaintiff also requests the amount she paid for a survey on the property and the amount she contributed to the new drain. I accept the plaintiff’s evidence that the ditch in the hedge row had provided sufficient drainage for her property and that drainage only became a problem when the ditch was filled in. Further, I accept the plaintiff’s evidence that she obtained the survey for the purpose of the new drain, which may not have been necessary had the hedge row not been removed. I therefore add to the damages the costs of the survey, $6,440.59, and the cost of the drain, $25,120.68, for a total of $31,569.27.

[73] On the issue of parity, I note the plaintiff is not able to provide any case law to support her argument that such an amount ought to be included in an assessment of damages. Instead, the authorities suggest that an amount ought to be assessed for loss of amenities. In my view, that is the appropriate route to take. The calculations presented by Mr. van Wassenaer lead to an inordinately high award and, following the principles set out in Lewis v. Todd, it becomes my obligation to adjust those figures downward. I therefore reject Mr. van Wassenaer’s parity calculations and instead will consider an appropriate amount for loss of amenities.

Loss of Amenities

[74] What exactly is loss of amenities? In British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, Binnie J. adopted the words of Southin J. in Prince Rupert (City) v. Pederson (1994), 98 B.C.L.R. (2d) 84 (C.A.), who adopted the words of May J in Barnet London Borough Council v. Eastern Electricity Board, [1973] 2 All E.R. 319 as follows:

The appellants accept that if a trespasser cuts down the trees of the householder, the latter may be awarded some amount for loss of amenities. As to what are the amenities provided by a tree, I adopt the words of May J as he then was, in a decision arising on the English tree preservation legislation, “… The underlying purpose of the relevant legislation is the preservation of trees and wood lands as amenities, as living creatures providing pleasure, protection and shade…”

[75] The plaintiff will be waiting for at least 20 years before she has mature trees at the place where she proposes to build her house. She will most likely never have trees along the entire length of the property line, as she did before. There ought to be some compensation for loss of amenities. I accepted Jason Murphy’s evidence that he counted 300 trees in the hedge row at one point. Those trees are gone, and the character of the property is forever changed. It is impossible to tell how many trees in the hedge row were on the Murphy property as opposed to the Mullen property, so I take one half of that amount, namely 150 trees. There is some precedent for an amount of $1,000 per tree, however, the plaintiff does not currently have a house on the Murphy property and has not started to build one. I would therefore reduce that amount to $500 per tree. Accordingly, in my view a reasonable sum for loss of amenities is $75,000.

Punitive Damages

[76] The test for the awarding of punitive damages is set out in Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, at page 291:

Moreover, punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case, where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

[77] Counsel for the defendants submits that the defendant believed he had consent when he clear-cut the hedge row. In my ruling dated July 10, 2018 I found that he did not have consent. I went on to say:

If consent had been given, taking Timothy’s evidence at its best, it was to “clean the fence row and install the 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.

[78] Accordingly, at best, Mr. Mullen believed that he had consent to clean out the hedge row and install a new ditch. He did not reasonably believe that he had consent to cut down any of the trees in the hedge row, much less to clear cut them all. This is not a case where the trespass was inadvertent. It was, in my view, reckless conduct on the part of Mr. Mullen. Mr. Mullen took it upon himself to cut down the hedge row and fill in the ditch so as to improve the drainage on his property without taking sufficient care to ensure that he had Ms. Murphy’s consent. The character of the Murphy property has been forever changed as a result of the defendant’s actions.

[79] At the same time, this is not a case where the defendants made no effort to obtain permission. He did make an effort and was hoping to work with the plaintiff to solve the drainage problem on his property. This is also not a case where the removal of the trees was completely unnecessary. The drainage problem on the Mullen property had to be remedied in some fashion, and it is likely that some trees would have been removed. I also must take into account the character of the land. This is farmland. Both Mr. Mullen and the tenant of the land on the Murphy property use the land for cash crop. There was no house on the Murphy property and Mr. Mullen was not aware that Ms. Murphy planned to build a house. Mr. Mullen did not completely disregard Ms. Murphy’s interests. Indeed, he kept a log from a tree he cut down for her to use, which he thought she had requested.

[80] The reasoning behind an award for punitive damages was explained in Thee v. Martin, [1998] B.C.J. No. 387 (S.C.), by reference to the Alberta Court of Appeal decision in Paragon Properties Ltd. v. Magna Investments Ltd (1972), 24 O.L.R. (3d) 156 (Alta. C.A.), as follows:

The basis of such an award is actionable injury to the plaintiff done in such a manner that offends the ordinary standards of morality or decent conduct in the community in such marked degree that censure by way of damages is, in the opinion of the court, warranted. The object is variously described to include deterrents to other possible wrongdoers, or punishment for maliciousness, or supra compensatory recognition of unnecessary humiliation or other harm to which the claimant has been subjected by the censurable act. It is the reprehensible conduct of the wrongdoer which attracts the principle, not the legal category of the wrong out of which compensatory damages arise and in relation to which the conduct occurred.

[81] In Halsbury's, 4th ed., vol. 45, para. 1403, the issue of punitive damages in the context of trespass is explained thusly:

1403. Damages. In an action of trespass, if the plaintiff proves the trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss. Where the defendant has made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such a sum as would reasonably be paid for that use. Where there is an oppressive, arbitrary or unconstitutional trespass by a government official or where the defendant cynically disregards the rights of the plaintiff in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased.

[82] I cannot find in all the circumstances that the defendant completely disregarded the rights of the plaintiff. I cannot find that he was callous or that the trespass was oppressive or arbitrary. I find instead that the defendant was reckless. He chose to believe that he had consent to remove the entire tree line when he did not. I cannot find in all of the circumstances the defendant’s behaviour was so high-handed as to be deserving of rebuke. I therefore decline to make an order for punitive damages.

[83] In declining to order punitive damages, I also consider that the amount of damages I have awarded is sufficiently significant to act as a deterrent to the defendant and other possible wrongdoers.

Disposition

[84] For the foregoing reasons, I order that the defendant pay to the plaintiff damages in the total sum of $213,471.27 comprised of the following:

1. $106,902 for restoration;
2. $31,569.27 for out-of-pocket expenses; and
3. $75,000 for loss of amenities.

[85] In the event the parties are unable to agree on costs, they may provide written submissions to include a costs outline and any relevant offers to settle according to the following timeline:

1. The plaintiff to provide submissions within 20 days;
2. The defendant to provide submissions within 20 days thereafter;
3. The plaintiff to provide reply submissions within 10 days thereafter.

Original Signed by “ Justice Pamela L. Hebner ”

Pamela J. Hebner Justice

Released: February 26, 2020

COURT FILE NO.: CV-13-19138 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Judith Ann Murphy and Jason Andrew Murphy v. Timothy Mullen and T.S. Mullen Farms Ltd. REASONS FOR JUDGMENT Hebner J. Released: February 26, 2020