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Trespass

 

trespass 2Most of the case law I have reviewed on damages for trespass to land usually, but not

 

 

 

always, involve the deliberate cutting or trees, or similar damage caused to your property by someone who had no legal right to do so..

The claim for damages for such trespass can be significant and often involved a claim for punitive damages, and is on occasion the subject of estate litigation.

 

The recent case of Klimek Estate v Klimek 2014 BCSC 1204 awarded judgement of $189,000 for the loss of tress deliberately cut, but also $25,000 for punitive damages.

 

The Klimek case followed  Bawa v Noton unreported Duncan Registry # 53095,  July 21, 1994   which stated as follows:

 

In Webb v. Attewell [1994] 4 W.W.R. 404 (B.C.C.A.) Southin J.A., for the majority, observed that:

 

The law on damages for trespass to land is not complex. As Halsbury’s, 4th ed., vol. 45, para. 1403, puts it:

 

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.

 

The proper measure of general damages in cases of trespass and wrongful conversion of trees has been recently considered, both by this court and the Court of Appeal.

The following decisions were referred to by counsel: Kates and Kates v. Hall (1991), 53 B.C.L.R. (2d) 322 (C.A.); Hik and Hik v. Kerr et al., unreported, June 10, 1992, Vancouver Registry No. C894441 (S.C.); Horseshoe Bay Retirement Society v. S.I.F. Development Corp. et al. [1990] 66 D.L.R. (4th) 42; City of Prince Rupert v. Pederson et al., unreported, February 28, 1992, Vancouver Registry No. C902390 (S.C.); Shewish v. MacMillan Bloedel Ltd. (1990) 48 B.C.L.R. (2d) 290 (C.A.); Harshenin et al. v. Bayoff (1991) 49 C.P.C. (2d) 55 (S.C.); Canadian Forest Products Limited v. Pacific Forest Industries Ltd. et al., unreported, June 21, 1991, Vancouver Registry No. C884480 (S.C.); and Dykhuizen v. Saanich (District) (1989) 63 D.L.R. (4th) 211 (C.A.).

 

These decisions demonstrate that, in cases such as this, where there has been a trespass and conversion, the court must first ascertain the degree of culpability, or want of bona fides, on the part of the trespasser.

Then, depending on the characterization of the trespasser’s conduct, one or other of two “rules” are applied.

The first, or “milder”, rule applies where the trespass was accidental or inadvertent. There the plaintiffs are entitled to recover, as damages for the trespass and conversion, the realized value of the trees taken less the cost of harvesting them from the land and taking them to market.

The second, or “severer” rule applies where it is determined that the trespass was wilful, and there the plaintiffs are entitled to recover the realized value of the trees taken less only the cost of taking them to market.

 

In Shewish the Court of Appeal considered the “in-between” area, that which does not involve inadvertence or deliberate trespass, but rather a trespass resulting from negligence or indifference on the part of the defendant. There, Hollinrake, J.A., for the court, observed that:

 

What the law has looked for in assessing damages in cases such as this is what I see as the degree of culpability, or want of bona fides, in the trespasser. I do not think it can be said that the law has developed to the point that it sees negligent trespass in cases such as this as necessarily attracting the severer rule for the assessment of damages. There are degrees of negligence and I think the degree of negligence in terms of culpability and bona fides must be looked at in determining the rule to be applied to the assessment of damages in cases such as this.

 

In this case, even if the trespass might be characterized as “negligent”, I find that it was not so culpable as to warrant the application of the “severer” rule in assessing the proper award of damages.

 

In three of the decisions mentioned above — Dykhuizen v. Saanich, Kates v. Hall and Hik and Hik v. Kerr — the formula established by the International Society of Arboriculture was considered and accepted for the purpose of assessing damages. The formula is to some extent, as the Court of Appeal noted in Dykhuizen, a “rule of thumb” that:

 

seeks to establish a value for trees in place, taking into consideration not only the cost of replacement but many apparently relevant, but not easily quantifiable, factors in reduction of that cost.

 

But the circumstances of those cases were quite different from the present case; each of them involved residential property, not unimproved land, and in none was there evidence that the trees that had been wrongfully cut down were removed from the property and sold as logs.

Moreover, in Dykhuizen and Kates the trespasses were found to be deliberate and wilful, and in Hik one of the defendants was found to have acted negligently. In that case, the court observed that the negligent defendant was a developer who “should know how important it is to be meticulous with regard to property lines and the cutting of trees on someone else’s property” and found that he had been “careless and casual about a very important matter”.

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