COURT FILE NO.: CV-17-00290-00
DATE: 2022-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Arthur Nix
R. Bodnar, for the Plaintiff
Plaintiff
- and -
William Tenniscoe
R. Clinker, for the Defendant
Defendant
HEARD: December 8, 9 and 10, 2021,
In person at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Trial Judgment
[1] The plaintiff Arthur Nix (Art) sues the defendant William Tenniscoe (Bill) claiming damages for the torts of nuisance, assault and battery. Art also seeks aggravated and punitive damages. Bill counterclaims seeking to recuperate funds he expended on road access to jointly owned property and for other camp property owed by Art for which he asserts Art has been unjustly enriched. He also claims for damages to his ATV caused by Art backing his truck into the off-road vehicle.
[2] For reasons set out below I am dismissing both the claim and the counterclaim in total.
Agreed Facts
[3] The parties agreed on the following facts
The parties are brothers. They have two other siblings, Ona Rovere, also known as Ona Nix and Chester Nix.
The parties’ father, William Buford Nix, purchased vacant property in 1957 in the District of Thunder Bay being Parcel 5636 Section DFWF; Location TW 46 unsurveyed territory near Owakonze station, on the Canadian National Railway as in PFW2254; District of Thunder Bay (PIN 62505-0397). This property is referred to by the parties as the North Property as it is located north of the CN railway tracks.
In 1973, the parties’ father purchased additional vacant property to the south of the CN railway tracks on Brule Lake, being Parcel 16048 Section TBF SRO; Summer Resort Location T.W. 104 unsurveyed territory being Part 1; 55R784; District of Thunder Bay (PIN 62505-0075). This property is referred to by the parties as the South Property.
The parties’ father died in 1977 and the four siblings inherited the North Property and the South Property with each sibling owing a ¼ interest as tenants in common.
In 2003, the Defendant, William Buddy Tenniscoe (“Bill”) transferred his ¼ share in the South Property to his daughter Angela Tenniscoe, also known as Angela Warnick (“Angela”).
In 2004, the siblings purchased the shoreline frontage adjacent to the South Property being, Parcel 27277 Section TBF; Location CL 13217 unsurveyed territory in front of location TW 104, Part 1 55R12039; District of Thunder Bay (PIN 62505-0986). Each sibling paid an equal share of the purchase price and each owns a ¼ interest of same as tenants in common with the exception that Bill put his ¼ interest into Angela’s name. This is considered to be part of the property referenced as the South Property in this litigation.
The following buildings are located on the North Property:
a. Ona Rovere’s cabin;
b. Jordan Nix’s cabin and shed;
c. Jason Tenniscoe’s old cabin; and
d. Ruth Martinsen’s trailer and shed.
- The following buildings are located on the South Property:
a. Bill’s cabin, wood shed and two sheds; and
b. Art’s cabin, sauna, garage and two sheds.
Also on the South side of the railway line, but not on the South Property, are Bill’s trapline cabin (sauna) and Jason’s (Bill’s son) communal cabin.
From on or about 1984 to 1986 the parties accessed the Properties from the road depicted in orange/red on the Map located at TAB 1 of the Book of Documents (Documents Admitted for the Truth of their Contents). This is referenced as the North Star Timber Road. All of the parties would then illegally cross the tracks to access the South Property. CN Rail would put in ditches on the south side of the tracks to try to prevent the family from doing so.
In or about 1986 the Great Lakes Forest Company built a road parallel to the North Property which is the road depicted in purple on the Map located at TAB 1 of the Book of Documents (Documents Admitted for the Truth of their Contents).
The road depicted in pink on the Map located at TAB 1 of the Book of Documents (Documents Admitted for the Truth of their Contents) was subsequently constructed. Bill alleges that he built the road depicted in pink which is disputed by Arthur.
Near the Properties, a railway track and crown land separates the North Property and South Property. There is a private railway crossing for vehicles on the railway track (the “Crossing”).
In 1991, Bill applied to CN Rail to have a private railway crossing installed at the location of the Properties but his application was denied.
In 2007, Bill applied again for a private crossing at the location of the properties. Bill’s application for a private crossing was approved and he entered into a Private Crossing Agreement with CN Rail dated March 6, 2007 (the “Agreement”). At that time, Arthur was not an authorized user of the private crossing.
As per the terms of the Agreement, Bill was responsible for all of the costs associated with the installation, maintenance and repair of the crossing. In addition, he was required to install and maintain a locked gate at one end of the crossing to prevent unauthorized users from using the crossing and maintain an additional policy of insurance naming CN Rail as an additional insured at his cost.
In August 2016 Arthur was charged for unlawfully using the Crossing, contrary to section 26.1 of the Railway Safety Act. On October 27, 2016, Arthur’s wife, Gay-Lynne Nix was charged with unlawfully crossing the railway track near but not at the Crossing, also contrary to section 26.1 of the Act.
Subsequent to his charges, Arthur took steps to become an authorized user of the crossing with CN Rail.
In March 2017 Arthur, and the parties’ siblings Chester and Ona, entered into his own Private Crossing Agreement with CN Rail for the private crossing which included the same terms as Bill’s Agreement. Bill was notified of same on or about March 15, 2017 by CN Rail.
On or about March 15, 2017, CN Rail directed Bill to replace the lock on the gate with a lock from CN Rail (to which Arthur would be provided a key). Bill was advised that if he did not do so CN Rail would remove his lock as the gate was located on property owned by CN Rail.
On or about April 12, 2017 Bill moved the Gate from its original location on CN property, to the North Property and did not change the lock on the Gate.
On or about April 14, 2017, Arthur called the OPP to remove Bill’s lock. The OPP attended the Properties, but the parties were told it was a civil matter.
On or about April 15, 2017, Arthur cut a link in the chain holding the Gate closed and attached the CN lock to Bill’s lock so he could have access through the gate.
On or about April 21, 2017, Arthur and his wife were at their cabin on the South Property when Bill and his son, Jason Tenniscoe arrived at the South Property. Bill removed the CN lock and locked the gate with his own lock upon entering the South Property.
Upon discovering the CN lock had been bypassed, Arthur, a welder by trade, sought to cut Bill’s lock with his welding torch. Prior to cutting Bill’s lock, a standoff resulted between Arthur and Bill at the Gate. A physical altercation then occurred between Bill and Arthur
As a result of the altercation, Arthur was charged with:
a. careless use of a firearm,
b. assault with a weapon; and
c. dangerous operation of a motor vehicle.
Art pled guilty to careless use of a firearm and agreed to a twelve-month probationary order. The other charges were withdrawn.
Bill was charged with mischief. This charge was withdrawn.
Bill’s lock remained on the Gate until June 22, 2017 when Bill was ordered to remove same further to an interim Order of the Court. This Order has remained in effect and Arthur has had continued access through the Gate since that time.
[4] I accepted and relied on these agreed facts in coming to my decision. I will now discuss each claim made by the parties in turn. I will first discuss the evidence about the particular issue. I will then discuss the law applicable to the particular claim. I will then discuss my reasons for dismissing the particular claim at issue.
General Observations on the Trial Evidence
[5] In order to understand my decision, I see it as important to first make some general observation about the trial evidence. I heard evidence from six witnesses. Two of the witnesses were independent in that they had no familial connection to the parties. In my view, the evidence of these two witnesses was not critical to the adjudication of any of the issues at this trial. The two independent witnesses, Mr. Chan and Mr. Baxter gave their evidence in an honest and forthright manner. The evidence of Mr. Chan and Mr. Baxter did not add anything materially different to that which was already been placed before the court by other witnesses. The plaintiff in calling these witnesses did not make economical use of the Court’s time.
[6] I heard evidence from Art’s wife, Gay Lynne, and Bill’s son Jason. Gay Lynne’s evidence was unhelpful. Her evidence mirrored that of Art’s. It did not add anything substantial to the evidence necessary to adjudicate either the claim or the counterclaim. I find she gave her evidence in a manner that served only her husband’s cause. It was not reliable or credible. I so find because of her obvious self interest in promoting her husband’s versions of events.
[7] Jason’s evidence was helpful to the court. He gave evidence that verified a key fact with respect to the assault claim that I will discuss below. However, I found he was evasive and not forthright in certain other aspects of his evidence. He was able to recall precisely certain details that were favourable to his father’s case. However, Jason while under cross examination answered several times that he “did not recall” other details that were clearly unfavourable to his father’s case. I find that his answer – “I don’t recall” – to simple questions like “did you see any police officers present immediately before your father and your uncle fought” indicate he was not being completely forthright in giving his testimony.
[8] Also, Jason’s demeanor changed during the portions of his testimony where he testified that he could not recall things. In cross examination, at times, Jason’s voice dropped when he “could not recall” in a way that I felt indicated he was not prepared to tell the truth in answer to those particular questions. While I appreciate that demeanor is not the most reliable method to assess any person’s evidence, in this case, it was obvious that the tone of the evidence changed when Jason testified he could not recall certain things.
[9] The testimony of the two main parties also had some serious flaws. Both gave their testimony in a confident manner. Both men presented as respectable and mature individuals. However, the main piece of evidence I had in this trial, a series of three videos, told me another story.
[10] The videos showed most of what I needed to adjudicate what I see as the driving force in this litigation. The video was clear, up close, had good sound and light and showed me what I needed to see. It was the best evidence I had on this trial. It spoke for itself. I note that in the authorities provided by counsel concerning civil assault cases, a good deal of the decisions necessarily contained recitations of wildly different accounts of alleged fights. Not in this case. I saw what I needed to see on the videos to get a measure of these two men, what happened on April 21, 2017, and the merit of the assault and battery claim by Art.
[11] I will give a short synopsis of the main things I observed on the video, relying as well on the agreed facts when I discuss the assault and battery claim.
[12] In my view, the actions of Art and Bill on April 21, 2017 were shameful. Two grown men, brothers, engaged in two distinct fist fights in short order over a land dispute that had been simmering between them for many years. Art testified that he had called the police before things got out of hand that day. The police were aware of the dispute but said they would not come out to the property that day. However, in my view, neither brother had any legitimate excuse for acting in the way they did that day. There was no need for violence. Both men sought to take the law into their own hands. These parties made a number of bad decisions that day. In my view, the trial evidence demonstrates no basis for compensation for those decisions.
[13] Neither Art nor Bill apologized to each other at this trial. Neither gave their evidence in a manner that appeared they were the least bit contrite for the way they acted as depicted in the video and with respect to other events covered by their other testimony. I think most people would have been mortified to have been caught on camera acting in the way they did that day. Not these two. Art, under cross examination was generally evasive on topics that were not favourable to his case. On those occasions, he clearly did not answer questions directly and seemed to try to spin responses to simple straightforward questions asked of him in cross examination. It was Court, not question period. His evidence was not persuasive when he was avoiding answering the questions of opposing counsel.
[14] I found Bill to be slightly more forthright in that he appeared to be trying to honestly answer the questions asked of him. This observation does not mean I found his evidence to be more persuasive or reliable. Bill gave his evidence in a way that led me to understand he still thinks he was acting rationally doing what he did as depicted on the video. Bill, in defence of his then extinguished exclusive control of a rail crossing, chose to put himself in a very bad situation. He put himself between his brother, an experienced welder with a fully lit acetylene torch and a small lock on a makeshift gate located on land owned by both of them in a very remote area of the province. These actions represented a series of unreasonable decisions on Bill’s part.
[15] In the video I saw Art brought a loaded rifle to the scene. It seems to me nobody shown in the video brought their common sense with them that day.
[16] Bill specifically testified that he could have had either a “fight or flight” response to the events of the day. He testified he chose to “stand his ground”. A revealing choice of words in my view. It discloses an attitude that is arrogant and wrong-headed. I do not see Art’s actions that day as being materially different from the “stand your ground” attitude stated by Bill. “Stand your ground” as demonstrated by the actions of these two suggests to me an uncompromising reliance on force as opposed to reason to resolve civil disputes. If people are not prepared to listen to reason, you “stand your ground” by continuing to act unreasonably or hitting them or pushing your way through their position. This defensive sounding phrase is spouted as an Orwellian newspeak justification for reckless and destructive offensive action. The self-righteous and unrepentant attitude demonstrated by the testimony of the two brothers in the calm and dignified arena of an Ontario Superior court five years after an embarrassing display of boorishness seems to me to be disingenuous. They both acted in a foolish and dangerous manner.
[17] Ultimately the brothers retained competent counsel and figured out how to resolve what was the real longstanding irritant between the two of them. It concerned vehicular access to their camp property over a CN railroad crossing. The road access dispute as set out in the statement of claim before me was a legitimate civil matter requiring adjudication. I did not have to adjudicate on this matter as the parties had resolved that aspect of the claim before trial. Counsel indicated they will provide a consent order once I have given my reasons for decision.
[18] I will now discuss each particular claim in turn.
Art’s Claim for Nuisance
[19] Art claims Bill is liable to him for damages for unreasonably interfering with his use and enjoyment of his lands. Art claims damages for nuisance for a relatively short period of time. The start date was disputed between the parties. Art says the nuisance started on March 13, 2017. Bill argues if the claim is valid, it started on March 15, 2017. Both agree the claim ended on June 22, 2017.
[20] It is agreed that Art was permitted by CN to use the rail crossing as of March 2017. On March 15, 2017 Bill was directed by CN to remove his lock on the gate he had erected to keep unauthorized users from driving across the tracks. Bill thought it was wise to move the gate off CN land and on to the jointly owned property to the north of the crossing so as to “bypass” CN’s ability to interfere with his lock. Bill thought this somehow entitled him to continue to keep the gate locked with his lock. It did not in my view.
[21] Art did not attend at the North Property until April 14, 2017. His efforts to engage police to assist in having the lock removed had failed. Art cut the chain in a practical way that permitted both locks to function. This was not good enough for Bill who removed the CN lock such that his lock remained the sole lock on the gate.
[22] The crossing fight ensued. For reasons that were not explained in the evidence, Art did not follow through on his threat to cut Bill’s lock. Art managed somehow to return to Thunder Bay, retain counsel, start the within action and obtain injunctive relief to have Bill remove his lock and open the gate on June 22, 2017.
The Law of Nuisance
[23] In Antrim Truck Centre Ltd v. Ontario (Ministry of Transportation) 2013 SCC 13, [2013] 1 S.C.R. 594 the Supreme Court of Canada set out the principles related to claims of private nuisance. Justice Cromwell stated at paragraph 19:
[19] The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.
[24] An earlier decision of this Court, Yates v. Fedirchuk, 2011 ONSC 5549 had considered an issue of what constituted “unreasonable” interference with land. Annis J. proposed a useful four-part analysis for a finding of civil nuisance which considered:
a. The character of the locale
b. With the plaintiff or their use of their property was abnormally sensitive
c. The utility of the defendant’s conduct
d. The type and the severity of the harm.
Analysis of Art’s claim in Nuisance
[25] Bill’s gate only interfered with Art’s use of the South Property. No doubt this was the place Art enjoyed the most as it was waterfront and he had his camp at this location. After March 15, 2017, Bill’s actions in keeping his lock on the gate, wherever the gate was located, were without colour of right. It did interfere with Art’s access to the South Property. However, based on the evidence at this trial, I find Art fails to meet the first part of the test to establish a claim in nuisance; I find the interference was trivial.
[26] I find the interference was trivial because Art was able to continue to ingress and egress the South Property from March 15, 2017 until June 22, 2017. He had been illegally crossing the tracks at the crossing and other locations for many years. On April 22, 2017, Art managed to find his way out of the South Property after he fought with Bill. For whatever reason, he did not cut Bill’s lock off, following through with his “this is how it is gonna go down” threat, even after the fight. I did not find Art’s counsel’s argument persuasive that despite the fact he had legal access across the tracks he was justifiably afraid to use the North side right of way to circumvent the gate. This is because a long stretch of the CN right of way on the south side of the tracks was agreed by the parties to be used to this day as the means to access the South Property. Travelling across the CN right of way at places other than the crossing point did not seem to have bothered Art very much ever.
[27] I also do not see Bill’s interference as rising to a standard of “unreasonable” as discussed in the Yates decision supra. Bill’s actions were uncalled for and childish after being told by CN that Art now shared the right to cross the tracks. Nonetheless, Art’s ability to circumvent the gate colours my assessment of all four parts of the test. The gate was in a remote rural place that impacted only members of one family. It really did not stop anybody from accessing the South Property. It was inconvenient but that was all. Further Art’s apparent “drive around” pre and post fight demonstrates for me that Art was not unduly sensitive to Bill’s actions. After the fight he effectively ignored Bill’s lock and took what should have been his first course of action once the police did not become involved; bringing the matter to counsel to either work it out or go to a civil court.
[28] Bill’s actions had only a symbolic utility. They were of no real utility except for Bill’s fruitless longstanding effort to get Art to pay up for the work done to install the crossing. Following the denial of responsibility for financial contribution by Art in 2007, Bill’s first course of action should have been commencement of an action, probably in Small Claims Court.
[29] Lastly, I see the harm to the issue of access through the gate as minimal on an objective standard. It certainly had the effect of creating a showdown between the brothers, which was likely Bill’s intention. However, this was a result specific to the two men involved in this dispute.
[30] If I am wrong about liability for nuisance, I would assess damages for this interference at one dollar. I say this because Art was able to get around the gate notwithstanding Bill’s actions of keeping it locked for a relatively short period of time. Compared to the longevity of this dispute, I find the damages to be slight – if existent.
Art’s Claim for Damages for Assault and Battery
[31] The video showed me most of what I needed to see to resolve this aspect of Art’s claim. The parties agreed there were two fights. The first occurred at the gate. The second at the driver’s side of Art’s truck. In my view, I heard evidence from Jason as to the cause of Art’s only compensable injury from the second fight which is determinative of Art’s claim and will be discussed below.
The Law of Civil Assault and Battery
[32] In a recent decision of this court in Grech v. Scherrer 2021 ONSC 6740, McKelvey J. relied on a useful textbook definition of assault and battery when adjudicating a claim involving a civil assault. At paragraphs 29 through 34 he set out:
[29] Assault is defined in the text Bruce Feldthusen et al., Canadian Tort Law, 11th ed. (Markham, Ont.: LexisNexis Canada, 2018), as the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest and freedom from fear of being physically interfered with. The underlying policy for the tort of assault is the reduction of violence because threatening to inflict harm is apt to attract retaliation in the same way as causing harm. It therefore must also be discouraged by tort law.
[30] In the text, the authors state at p. 51,
Assault should be distinguished from battery, although the two are often blurred together and called “assault”. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and a battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault, but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.
[31] Battery is defined in the text Canadian Tort Law on page 46 as follows,
A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact or that a reasonable person would think she had consented. This nominate tort protects the interest in bodily security for interference from others. It is sometimes said that the contact must be harmful or offensive, but this is misleading. By definition, any contact beyond the trivial contact that is expected in the course of ordinary life is prima facie offensive if it is non-consensual. Every person’s body is inviolate. The tort protects the integrity of one’s person and does not require proof of further injury.
[32] On page 10 of Canadian Tort Law, it states that the common law has excused intentional interference with the person of another, if one person is threatened with harm by another. Self preservation is recognized as an inevitable and unavoidable instinct in human beings which must be accepted by the law.
[33] The authors of the text, however, note that self defence is a preventive mechanism and not an instrument for revenge. Force employed by a threatened person for self defence must be reasonable. Since the right of self defence is one which might be easily abused, the courts have condemned measures, “out of proportion to the apparent urgency of the occasion”. Defensive force is not reasonable if it is either greater than necessary for the purpose of preventing the attack, or disproportionate to the evil being counteracted. In other words, acts of self defence must be both reasonably necessary as well as reasonably proportionate to the harm being threatened. The force must therefore, not transgress the reasonable limits of the occasion, recognizing, however, that errors are possible when split second decisions must be made in response to threatened harm. The courts do not expect people to measure with legal nicety the extent of their blows.
[34] The onus of proving self defence in a civil action rests upon the defendant.
[33] I adopt this statement of the law as being applicable to the resolution of this claim by Art.
Analysis of Art’s Claim for Assault and Battery
[34] Art’s evidence was clear: he only suffered compensable personal injury from the second fight. I accept this evidence. I find Art suffered no damages or compensable physical injuries from the first fight.
[35] During the first fight, Bill punched Art in the side of the head at the gate. Bill hit Art once. I do not find that Bill was acting in self defence for the following reasons.
[36] I do not believe Bill’s evidence that Art burned his left eye with the welding torch. Bill had glasses on. Bill clearly moved back from the heat of the torch. Art’s action in holding the torch at shoulder level when the two were so close to each other was inexcusable and reckless. Later in the video Art clearly moved the torch to arm’s length, away from his body and Bill’s. It is a miracle that nobody got injured by that torch that day.
[37] However, I find that once Bill moved his head away from the torch, he did not make any gestures at that moment consistent with his eye being burned, like moving his hand to his eye or moving further away. He did not seek medical attention that day. I have no medical evidence of any serious eye injury to Bill. Therefore, I do not accept Bill’s evidence that Art caused him a burn in his left eye. I find Bill was not acting in self defence when he reacted to Art’s aggressive stance when he threw a punch at Art. Bill could have continued to move away from the very real danger of a fully lit torch in Art’s hand. His actions in throwing a punch were not reasonable in the circumstances. The act of throwing a punch was not reasonably proportionate to the threat Bill was faced with. Bill was unreasonably defending a lock, not his person. He could have continued to move back. He chose to swing. Fortunately for him, as far as liability is concerned, I find his blow was ineffectual as it caused no damage to Art.
[38] Immediately after Bill hit Art in the face, the first fight continued. The men engaged in what I would characterize as ineffectual flailing of their arms and kicking of their legs at each other. Lots of show but no damage.
[39] Bill then moved off.
[40] Art then saw Bill take the rifle from the cab of Art’s truck. Art went around the front of his truck. Bill uttered the words “who has got the fucking gun now”. The men then entered the second fight. I find the second fight was a consensual fight by both combatants. Bill wanted to continue to fight. Art obliged him.
[41] As I watch the video, I see that Bill first lunged at Art with the barrel of the rifle. However, he missed Art’s torso with the barrel. You can see the barrel of the rifle emerge in front of Art’s torso as the men struggle beside the open driver’s side door of the truck. This action is not consistent with what Art described as being “impaled” by Bill. Art grabs the barrel and pushes it skyward and back toward Bill. Art appears to land a punch on Bill’s upper body and falls to the ground in the follow through. Bill then changes his grip on the rifle, grabbing it by the barrel and swings it. As I see it, Bill was not swinging the rifle towards Art. Bill was swinging the rifle towards the ground. I find this is because Bill was trying to break the rifle. Bill was successful in doing so.
[42] I find that Bill did not “impale” Art in the stomach with the barrel of the rifle. Art produced photos of injuries to his head and legs that day. He did not take photos of the alleged stomach injury. I find this is because no such injury occurred. I assess that Art was mistaken in his evidence about this alleged injury to his stomach.
[43] After Bill smashed the gun on the ground, Jason dropped his cell phone, which had been capturing the incident on video, and jumped on Art. The camera is mostly then pointed skyward. However, Bill, Art, Gay Lynne and a dog quickly pass through the shot. At this point in the fight Jason testified he punched Art a few times in the head. Art confirmed Jason punched him a few times in the head. Jason then pinned Art to the ground.
[44] I find that Jason’s blows caused Art to suffer a head and concussion-type injury during the second fight. This included the neck strain complained of by Art. This head injury and neck strain were well documented by Art’s evidence, photographs and medical evidence tendered at trial. However, I find these injuries to the head and neck, including any concussion-type injury, were not caused by Bill or anything he did. I also do not accept Art and Gay Lynne’s evidence that Bill “butt-stocked” Art in the head with the broken rifle.
[45] Art was pinned on the ground and being punched by Jason. In my view this prevented Art from observing Bill at the time he says Bill hit him in the head.
[46] I agree with the submissions of Bill’s counsel that Gay Lynne’s evidence is not reliable on that point because of her self-interest. Also, in the video she appeared to be attempting to use her own cell phone to record the events unfolding before her. Apparently, she had failed to hit “record” and no video was produced from her phone. However, she was at times watching the events through her cell phone screen. In my view this limited her ability to reliably observe matters. I say this because when trying to use a cell phone to capture an emotionally charged and fast moving event like a fight, the focus of one’s eyes is on a small screen, at some varying length from those eyes and being necessarily limited to the scope of the camera lens. If the record button works, it does produce some excellent evidence. However, the video is not as wide in scope as that achieved by an old-fashioned observer unimpaired by trying to hold a cell phone camera steady. In my view Gay Lynne’s focus lead to confusion about what occurred particularly if the video ultimately was not recorded. I find this is what happened to Gay Lynne that day and it is why I do not accept her evidence on the butt-stocking or indeed any observations about alleged injuries to Art.
[47] There is no question it was a deeply upsetting and an incredible series of events that were unfolding before Gay Lynne that day. She witnessed her husband fighting with his brother and then being jumped and pinned to the ground by his nephew Jason, a much larger, younger man who was an ex-wrestler. These are understandably upsetting things. However, I find that degree of upset and the short time frame in which events unfolded, impaired her ability to reliably observe events when Art, Bill and Jason were fighting on the ground near the back of the truck. I do not find her evidence reliable on the issue of the injuries allegedly suffered by Art.
[48] Art also complains he suffered leg and ankle pain as result of the fight. The photographic evidence showed scrapes on Art’s legs. These are superficial and non-compensable injuries in my view. Art consented to the fight and appeared at one point to fall heavily to the ground after taking a swing at Bill. It is possible the scrapes occurred after that action. He cannot claim compensation for a trivial injury in a fight he agreed to. Also, I find that Art has not proved on a balance of probabilities that Bill applied some force to his legs or ankles that caused the difficulties about which Art complained. It is possible that Jason or even Gay Lynne may have stepped on Art’s ankle in the course of the melee. In any event, I also find this ankle injury to be trivial and non compensable.
[49] If I am wrong about liability for the injuries to Art’s legs and ankle, I would assess the damages for those injuries to be $1,000.00. This is because Art recovered very quickly and did not seek any serious treatment for this injury.
[50] For all these reasons, Art’s claim for damages for Assault and Battery are dismissed.
Art’s Claim for Aggravated and Punitive Damages
[51] Aggravated damages are awarded to sooth a plaintiff whose feelings are wounded by a defendant’s manner and state of mind. These damages can include feelings of humiliation, indignation, outrage and fear of repetition. They are usually connected to evidence of mental distress. No such evidence was led by Art in this case. Art has not proven a claim for aggravated damages.
[52] Punitive damages are designed to demonstrate to a wrongdoer the law will not tolerate conduct that willfully disregards the rights of others. They are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. They are by definition punitive, not compensatory in nature.
[53] Bill’s actions have been denounced by this judgment. I see no good reason to award Art anything for punitive damages in this matter.
Bill’s Counterclaim
[54] At the outset I observe that my sense is the counterclaim was a pushback action that would not have ever been pursued if the claim for assault had not been made in the first place.
[55] Bill counterclaims under two distinct heads of damages. First, he claims damages to his ATV which he alleges where caused by Art backing up his truck into the ATV immediately after the second fight. Second, he claims damages from Art for road and rail crossing work by which Art has been unjustly enriched.
The Claim for the ATV
[56] Bill and Jason had parked their ATVs on the South side of the rail crossing as they approached Art on April 22, 2017 to begin the series of shameful events depicted on the videos. After the second fight, Art and Gay Lynne got in their truck. It was parked facing North. Art was driving. Art then backed the truck up southbound over the rail crossing. Bill testified that Art’s truck struck Bill’s ATV. In his evidence Art did not deny this occurred.
[57] Bill did not have insurance for his ATV. His ATV continues to function to the date of the trial. Bill claims he cannot drive it over 20 miles an hour. The damages evidence for the ATV was obtained in 2018, a year after Art backed into the ATV.
The Law Concerning the ATV claim
[58] There was no dispute that Bill’s ATV was an “off road vehicle” within the meaning of the Off-Road Vehicles Act, R.S.O. 1990 c. O. 4. Section 15(1) of the Off-Road Vehicles Act provides no person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act, R.S.O. 1990 c. I.8. Section 263(1) and (5) of the Insurance Act provides;
263 (1) This section applies if,
(a) an automobile or its contents, or both, suffers damage arising directly or indirectly from the use or operation in Ontario of one or more other automobiles;
(b) the automobile that suffers the damage or in respect of which the contents suffer damage is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Chief Executive Officer, in the form provided by the Chief Executive Officer, an undertaking to be bound by this section; and
(c) at least one other automobile involved in the accident is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Chief Executive Officer, in the form provided by the Chief Executive Officer, an undertaking to be bound by this section. 1993, c. 10, s. 21 (1); 1997, c. 28, s. 113; 2018, c. 8, Sched. 13, s. 22…
Restrictions on other recovery
(5) If this section applies,
(a) an insured has no right of action against any person involved in the incident other than the insured’s insurer for damages to the insured’s automobile or its contents or for loss of use;
Analysis of Bill’s Claim for his ATV
[59] Bill is a member of a First Nation. Bill testified that he was not required to insure his ATV while traversing over the traditional territory of his First Nation.
[60] Bill’s counsel could provide no authority or statutory or constitutional basis for such a proposition.
[61] I find Art’s action in backing his truck up in a manner that struck Bill’s ATV was an accident. Art did not intend to hit Bill’s ATV. He was not attempting to further injure Bill. He was trying to get away from the scene.
[62] I find the provisions of the Off-Road Vehicles Act required Bill to maintain insurance on his ATV. Further, I find section 263(1) and (5) apply to the accident between Art’s truck and Bill’s ATV. I find the provision of the Insurance Act concerning compulsory insurance bars Bill’s counterclaim in respect of his ATV.
[63] If I am wrong about the issue of liability, I would assess the damages to Bill’s ATV to be $500.00. It is still useable. The damages evidence of July 2018 by the repair shop admitted for the truth of the contents suggested that the frame was bent and the ATV was unsafe to operate. Notwithstanding this “advice”, the repair shop did an oil change and released the ATV to Bill. He continued to operate it as he had done for a year since the accident. I am not persuaded that the damage evidence submitted by Bill is accurate or of assistance to the court in assessing damages.
The Claim for the Improvements to Land
[64] This portion of Bill’s counterclaim had two parts. The first was a claim for a one-quarter portion of the total cost Bill expended in 2007 to have the rail crossing installed. Bill claims $4,279.67 from Art for his quarter portion. The second portion of the counterclaim was for a quarter portion of various work Bill did on the road leading to the North Property from May 2015 to September 2017. Bill claims from Art $15,600.00 for his quarter portion.
[65] Art testified he too has done work on the same road about which Bill claims.
[66] In or about June 2008, Bill presented Art with a piece of paper that set out the amounts he had expended on putting in the crossing as well as amounts for “maintenance of road”. At the bottom of the one-page document a calculation was shown which Bill confirmed in his evidence was a demand by Bill that Art pay him $10,701.92 in order for Bill to permit Art to continue to use the crossing. Art refused to pay Bill anything. Art testified he continued to use the crossing illegally until he obtained his own agreement with CN in 2017.
The Law Concerning the Land Improvement Claims
[67] Bill asserts he has a claim against Art for unjust enrichment for both aspects of his claim. A court will provide a remedy when an injustice is demonstrated by one person making a contribution to the property of another person without compensation.
[68] Art argues section 4 of the Limitations Act, S.O. 2002, C. 24, Sched. B bars Bill’s claim in respect of the rail crossing work. Section 4 of the Limitations Act provides:
Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Analysis of the Land Improvement Claims
[69] I agree with counsel for Art that Bill’s claim for payment for work he did on the rail crossing is statute barred and the time for making the claim had expired prior to the counterclaim being issued. Bill did the work in 2007. Bill made the demand to Art to pay in 2008. Bill had discovered his claim at that point in 2008. At its highest and best, Bill’s right to sue for work he did in 2007 ran out in June 2010. I also do not see his claim as ongoing in that he never voluntarily agreed to allow Art to cross. Art had to go to CN himself to obtain this right. CN controls their property, the crossing and the tracks and the right of way. CN stipulated Art could have access over the tracks upon Art paying CN an annual fee and obtaining some kind of insurance. CN did not impose any conditions whereby Art had to pay Bill for expenses Bill had made to put in cross timbers and level the grade to allow vehicles to pass. CN made no further demands of Art. Bill has no ongoing claim on a quantum meruit basis against Art in my view. Bill’s claim in respect of the rail crossing work is dismissed.
[70] I am not persuaded by Bill’s argument that the principles set out in Peter v. Beblow 1993 126 (SCC), [1993] 1 SCR 980 apply to Bill’s work on the road from May 2015 to September 2017. The road at issue is Crown land. It is not owned by either Bill or Art. Bill did the work so Bill could access his camp. It was to his benefit. He did not ask anybody if they wanted it done. He did not ask for their help in doing the work. He did not give them a choice not to have it done. It was not clear to me that Art actually knew when Bill had completed the work. In my view Bill’s efforts were of a gratuitous nature. He did not suffer a corresponding deprivation for doing the work. He thought it needed to be done and he did it. Also, in my view, until this 2017 lawsuit came along, he had given up asking to be paid for the road maintenance. Bill asked Art to pay in 2008. Bill did nothing when Art said no.
[71] I do not see it as “unjust” for Art to travel over a road owned by neither party that was maintained, not necessarily “improved” by Bill without Art’s consent or agreement. Whatever benefit Art received does not rise to the “lack of juristic reason” standard demanded by the long- established line of authorities which follow Peter v. Beblow.
[72] Also, I assess Bill’s assessment of the value of the work as being hyper-inflated. The majority of the claim is calculated as if Bill rented a backhoe from a commercial operator instead of using his own equipment. This is not an appropriate measure of damages for use of personal equipment. It might be a starting point, but I would see any amount as being deeply discounted from a commercial rate. Bill is also claiming for his time as if he was a commercial road repairer. I would award him zero for his own work. It was to his benefit. He cannot claim a portion from Art. A further aspect of Bill’s claim is for materials for 35 days at $100 a day for which Bill says he paid a commercial operator cash. “No tax” he was quick to point out when asked about the cash payment. Not a helpful answer.
[73] I find Bill has not placed before the court any persuasive evidence of value upon which an award of damages for road maintenance or improvements could be properly calculated. If I am wrong on liability, I would assess damages at $1,000.00 to Art as a contribution for work Bill did on roads used by Art from May 2015 to September 2017.
[74] For the reasons set out above both the claim and the counterclaim are dismissed.
Costs
[75] In the normal course, based on my decision, I would see this matter as calling for both parties to bear their own costs. The amounts sought at trial were within the jurisdiction of the Small Claims Court. I appreciate the main aspect of the claim settled before trial was not, but regardless, steps could have been taken to move this to another venue. I appreciate the efforts counsel made to try and streamline matters by agreeing to facts and documents. Nevertheless, both sides were not successful at this trial. In the event that some kind of offer to settle was made more than seven days before this trial commenced and was open for acceptance at the opening of trial that would have seen both parties “walk away” without costs, I will entertain submissions about costs of the trial only from the party that made such an offer. Short of that, I would not encourage counsel to take up any further Court time particularly in the present circumstances that the pandemic and its most recent Omicron variant has placed on our scare resources. I invite counsel, within five business days of the release of these reasons, to either indicate their agreement that no costs will be sought or – if the very narrow scenario regarding an offer I have outlined exists – then I ask them to request the trial coordinator to schedule a brief case conference so we can discuss the most economical way to bring this matter to a full and final closure. I appreciate that I will be receiving a final order encapsulating the settlement on a portion of the claim reached before trial and I would appreciate receiving that order approved as to form and content within 10 business days of the release of these reasons.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 11, 2022
COURT FILE NO.: CV-17-00290-00
DATE: 2022-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Arthur Nix
Plaintiff
- and -
William Tenniscoe
Defendant
TRIAL JUDGMENT
Fitzpatrick J.
Released: January 11, 2022
/lvp