Date Issued: August 28, 2020

File: SC-2020-001840

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Gusek v. City of Victoria, 2020 BCCRT 962

Between:

JEFF GUSEK

Applicant

And:

CITY OF VICTORIA

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This is a dispute over damage from a fallen limb of an oak tree allegedly owned by the respondent, the City of Victoria (City).

2.      The oak tree was located on the City boulevard adjacent to the home of the applicant, Jeff Gusek. It is undisputed that during a September 16, 2019 windstorm, a large limb from the oak tree fell, took out Mr. Gusek’s power supply lines and caused some property damage. Mr. Gusek says the City knew the oak tree was a hazard and failed to address it. He seeks $2,675.58 as reimbursement for property damage and reconnecting his electrical services.

3.      The City does not dispute that the incident happened. However, the City says it is not liable for the claimed damages. The City says it took reasonable care to maintain the oak tree and did not know, nor ought to have known, that the oak tree’s limb would fall and cause damage.

4.      Mr. Gusek is self-represented. The City is represented by its insurer’s legal counsel, Samantha Boyce.

5.      For the reasons that follow, I find the City is liable in nuisance and must pay Mr. Gusek $2,581.08 of the claimed damages.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

8.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

10.   The issue in this dispute is to what extent, if any, the City must reimburse Mr. Gusek the claimed $2,675.58 for damages allegedly caused by its oak tree.

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, Mr. Gusek as the applicant, bears the burden of proving his claims on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

Facts

12.   Mr. Gusek says the limbs and branches of a large oak tree on the City’s boulevard had grown through the BC Hydro power supply lines to his house. On June 4, 2019, Mr. Gusek contacted the City about the oak tree. Mr. Gusek says he told the City’s staff that the oak tree’s limbs and branches were in contact with his “Hydro drop” and he was concerned that if they fell, they would damage his house. The City created a “Request for Service” that same day.

13.   On or about June 4, 2019, the City says its arborist assessed the oak tree and determined it was healthy. However, there is no tree assessment, inspection report or statement from its arborist in evidence. I note that the City’s legal counsel did provide some information about the City’s arborist’s assessment, but that assessment is not found in the City’s records before me. I have not relied on legal counsel’s assertions contained only in argument.

14.   The City staff’s handwritten instructions on the June 4, 2019 Request for Service before me state “Cyclical prune, and clear service” to Mr. Gusek’s property. The request was rated as a moderate priority, which is not defined in the City’s Policy. I find “clear service” meant to prune the oak tree away from the power supply lines.

15.   Following the June 4, 2019 Request for Service, the City did not return to prune and clear the oak tree from the power lines. Unfortunately, on September 16, 2019 during a windstorm, a large limb from the oak tree fell and took out Mr. Gusek’s power supply lines and “service mast”. There is no dispute that Mr. Gusek had to hire an electrician to replace the service mast and install a new service conductor. Mr. Gusek says the incident also caused a power surge that damaged his turntable and garage door opening system.

16.   On October 7, 2019 Mr. Gusek emailed the City with notice of his damages claim. Though neither party raised it as an issue, I find Mr. Gusek’s email complied with the notice requirements in section 736 of the Local Government Act.

Is the City liable for damage caused by its oak tree?

17.   At law, nuisance is defined as a substantial and unreasonable interference with a person’s use and enjoyment of property. The focus is on the harm suffered, rather than the wrongful conduct. When there is physical damage, the courts are quick to conclude that the interference is substantial and unreasonable, and that the harm qualifies as a nuisance (Murray v. Langley (Township), 2010 BCSC 102, paragraph 37). In situations of natural hazards like this, the City will only be liable if it knew or ought to have known of the nuisance and failed to take reasonable steps to remedy the nuisance (Hayes v. Davis, 1991 CanLII 5716 BCCA (Hayes)).

18.   In Hayes, the BC Court of Appeal upheld the lower court’s decision that the defendant property owner was liable in nuisance after his trees fell on the plaintiff neighbour during a storm and caused her injury. About 5 or 6 months prior to the accident, the neighbour told the owner she thought a cluster of his trees bowing towards her house were hazardous. The owner refused to remove the trees for financial reasons. The court found that although the trees were healthy, the owner expressly or implicitly recognized the hazard of trees falling during a high windstorm. The court also found that the owner took no reasonable steps to address the tree hazard and found the owner responsible for his neighbour’s injuries.

19.   The CRT has decided several tree nuisance cases, which the parties raised in their arguments and I summarize below. While prior CRT decisions are not binding on me, they are persuasive. I also find the reasons in the following CRT decisions are consistent with the court’s decisions in Hayes and Murray cited above. The court decisions are binding on me.

20.   In Plaxton v. City of Delta, 2018 BCCRT 570, a CRT member found the municipality liable in nuisance where tree limbs fell and damaged the neighbouring applicant’s trampoline. The CRT member found the city failed to take sufficient steps to deal with the tree after receiving complaints that it was a hazard.

21.   In Reynolds v. Delta municipality/corporation, 2018 BCCRT 381, a CRT Vice Chair found the municipality liable in nuisance for tree limbs that fell from its “healthy” trees and damaged the neighbouring applicant’s pool lining. The Vice Chair found the municipality had done nothing to stop the nuisance after it ought to have known of the potential hazard.

22.   In Acosta v. The Corporation of the District of North Vancouver, 2020 BCCRT 678, the CRT member dismissed a nuisance claim against the District for damages from a fallen tree. The CRT member found the District took reasonable steps to remedy the nuisance by rating the trees and hiring a contractor to remove the trees on a priority basis. Unfortunately, a tree fell before its contractor had it removed.

23.   It is undisputed that the oak tree at issue was the City’s responsibility under the Tree Maintenance Policy (Policy), which requires the Parks department to inspect its trees every 8 years and record maintenance requirements. The City did not argue that it has a statutory or policy defense to this dispute, and I find it does not have one here. I find the oak tree’s maintenance was an operational decision.

24.   Here the City’s oak tree had visibly grown through the power supply lines connected to Mr. Gusek’s home. I find it caused physical damage to Mr. Gusek’s service lines and mast when its limb fell during the storm. Based on the physical damage, I find the City’s oak tree’s interference was both substantial and unreasonable.

25.   The City’s records show that the City had last inspected the oak tree on August 9, 2013. The City rated the tree in “fair condition” and assigned no maintenance requirement. The City asserts that when it assessed the oak tree after Mr. Gusek’s call on June 4, 2019, the oak tree was healthy. It says the City did not know nor ought to have known that the oak tree would fall and cause damage. However, without explanation, the City provided no statement from its main witness, an arborist, who had knowledge of the oak tree’s health and any potential risk posed by the tree. Without evidence from the arborist, I draw an adverse inference that what the arborist would have said would not have been in the City’s favour.

26.   Based on the photographs and Request for Service in evidence, I find it was reasonably foreseeable based on the oak tree’s position that a limb could break in a storm and disrupt Mr. Gusek’s electrical service by taking down the lines. I am satisfied that the City knew or ought to have known that the oak tree’s limb and branches were in a hazardous position and needed to be cleared.

27.   The City argues that it took steps similar to Acosta to abate the nuisance by scheduling the oak tree for future pruning within 6 months. However, the City’s Request for Service contains no 6 month timeframe or follow up date and the Policy is silent on this point. The City also provided no pruning schedule or job priority lists or any other records that show it had actively scheduled the pruning work. There are also no statements from City staff that the work was scheduled. Unlike in Acosta, I find the City took no positive steps after preparing the Request for Service instructions on June 4, 2019. I find this dispute is more similar to the respondent municipalities’ inactions in Reynolds and Plaxton. I find the City failed to take sufficient steps to remedy the nuisance after it knew or ought to have known of the oak tree’s potential hazard.

28.   I find the City is liable to Mr. Gusek in nuisance.

29.   I find no need to also decide whether the City is liable in negligence, so I have not discussed it here.

What are the damages?

30.   Mr. Gusek is seeking damages of $1,260 for the power line reconnection, $10 for an electrical permit, $730.80 to replace his garage door opener, and $674.78 to replace his turntable. The relevant receipts and invoices showing the value of these items are in evidence.

31.   I find the power line reconnection and permit were clearly caused by the fallen oak tree limb and the City must reimburse Mr. Gusek $1,270 for these expenses.

32.   The City does not dispute that the fallen limb also caused a power surge and damaged the turntable and garage door opener. In the Dispute Response the City alleged that Mr. Gusek did not have surge protection, but did not then pursue this argument further in its submissions. The City says it is only disputing the charge for a residential side lock and wireless digital entry because they seem unrelated to the incident.

33.   The company “Harbour Door” replaced Mr. Gusek’s garage door opener. I find it is not clear from Harbour Door’s invoice whether the side lock and wireless digital entry replaced original parts or were extras. I find that Mr. Gusek has not proven that these 2 charges relate to the power surge. I allow Mr. Gusek’s claim for the other garage door opener parts and installation for a total of $636.30. I also allow $674.78 for the turntable since its damage was not disputed.

34.   I find the City must reimburse Mr. Gusek a total of $2,581.08.

35.   The Court Order Interest Act applies to the CRT. Mr. Gusek is entitled to pre-judgment interest on the damages award from September 16, 2019 to the date of this decision. This equals $41.73.

36.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find Mr. Gusek is entitled to reimbursement of $125 in CRT fees. The City paid no CRT fees and neither party claimed dispute-related expenses.

ORDERS

37.   Within 30 days of the date of this order, I order the City to pay Mr. Gusek a total of $2,747.81, broken down as follows:

a.    $2,581.08 in damages,

b.    $41.73 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

38.   Mr. Gusek is entitled to post-judgment interest, as applicable.

39.   Under section 48 of the CRTA, the CRT will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the CRT’s final decision. The Province of British Columbia has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is expected to be in effect until 90 days after the state of emergency declared on March 18, 2020 ends, but the Province may shorten or extend the 90-day timeline at any time. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

 

40.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.