The recent decision of Pellegrin v. Wheeldon, 2020 BCPC 143 reads as an “instructable” on neighbourly nuisances. In Judge Catherine Crockett’s judgment she reviews a lengthy history of behaviour between neighbours that would make Mr. Rogers shudder. Judge Crockett uses this decision as an opportunity to give a lesson on the torts of nuisance and trespass, and the differences and similarities between these causes of actions. As most local governments have the power to regulate or prohibit nuisances by bylaw pursuant to sections 8(3)(h) and 64 of the Community Charter or Division 6 of Part 9 of the Local Government Act, it is an interesting case to read for the sheer volume of different types of objectionable behaviour that are captured in the decision.
The bad blood between the neighbours began (as it often does) with the placement of a wall. In 2008, the Wheeldons built a concrete retaining wall that inadvertently encroached upon Mr. Pellegrin’s property. At trial, Mr. Pellegrin admitted that his property benefited from the placement of this retaining wall, but this practical benefit did not outweigh the perceived injustice that Mr. Pellegrin felt he was forced to endure from the encroachment. Fast forward to 2015 when Mr. Pellegrin took
a jackhammer to the retaining wall, in an attempt to destroy it. Of note, neither set of neighbours was idle in the period of time between the construction of the trespassing retaining wall and the “harsh, vindictive, reprehensible and malicious” nuisance and trespass caused by the jackhammering of said retaining wall. In the judgment, Judge Crockett reviews all sorts of nuisances between the neighbours during this time, big and small, including: spray-painting on the retaining wall, directing snow, weeds, and tree branches onto the neighbouring property, spouting lewd and threatening words and gestures, and depositing large amounts of dog feces near the property line.
Judge Crockett notes that if it was a simple matter of the placement of the retaining wall, the proper recourse of action for Mr. Pellegrin would be to bring a claim in the BC Supreme Court, either seeking an injunction that required the Wheeldons to take specific action to remove the wall from the Pellegrin property, or applying to vary the property line or impose an easement, pursuant to section 36 of the Property Law Act. However, Mr. Pellegrin commenced his action in Small Claims court, which does not have the jurisdiction to order injunctions or make a ruling pursuant to the Property Law Act. The BC Provincial Court can only order damages to compensate one party for the actions of the other, and so this judgment comes down to the court putting a price tag on the grief caused by each neighbour.
Judge Crockett found that the Wheeldons’ placement of the retaining wall on the Pellegrin property amounted to a continuing trespass. Judge Crockett provides a helpful summary of the law of trespass at paragraph 73 of the decision, and states that trespass must be a direct interference with land. In her decision, Judge Crockett quotes the 2019 BC Supreme Court decision Shaman v. Meek, which summarizes continuing trespass:
If a structure or other object is placed on another’s land, not only the initial intrusion but also failure to remove it constitute an actionable wrong. There is a “continuing trespass” as long as the object remains.
Trespass can be contrasted with the tort of nuisance, which involves a use of a person’s land that indirectly affects the land of the plaintiff. Judge Crockett includes a quote differentiating between trespass and nuisance:
To throw stones upon one’s neighbour’s premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.
In assessing damages for the continuing trespass on the Pellegrin property, Judge Crockett appreciated that the inadvertent encroachment did not affect the Mr. Pellegrin’s use and enjoyment of his property, and in fact, the retaining wall was beneficial to him. She awarded nominal damages of one dollar.
However, trespass on a neighbour’s land does not entitle that neighbour to take whatever steps necessary to remedy the trespass. In considering the Wheeldons’ claim against Mr. Pellegrin for jackhammering the retaining wall Judge Crockett considers both the law of nuisance and trespass, as the jackhammering occurred largely on the Pellegrin property, but affected a wall that was a fixture on the Wheeldons’ property. Judge Crockett writes at paragraph 105:
The law in British Columbia is clear: self-help remedies for a trespass or nuisance do not extend to destroying another person’s property, particularly where there is no urgency to the situation, nor harm to the plaintiff by the trespass or nuisance.
Judge Crockett ordered that Mr. Pellegrin pay the Wheeldons damages for the cost of repairing the retaining wall that Mr. Pellegrin jackhammered without lawful authority, at the amount of $6,300.00. On top of the costs of repairing the wall, Judge Crockett ordered Mr. Pellegrin to pay to the Wheeldons:
- general damages, for losses to the use and enjoyment of their land;
- aggravated damages, to compensate the Wheeldons for their suffering; and
- punitive damages, to impose a punishment on Mr. Pellegrin.
The ultimate takeaway from this decision is clear: self-help remedies do not replace the law, and will do nothing to improve neighbourly relations. For our local government clients, this is an important reminder to ensure that all steps taken to address nuisances are done in accordance with provincial statutes and local bylaws.
