Date Issued: December 1, 2020

File: SC-2020-005026

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Liu v. Lee, 2020 BCCRT 1360

Between:

SHIH-JUNG LIU

 

Applicant

And:

SAM SANG KON LEE and KYOUNG IM LEE

 

RespondentS

And:

SHIH-JUNG LIU

 

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      This dispute is about trees between neighbouring properties. The applicant (and respondent by counterclaim), Shih-Jung Liu (also known as Fred Liu), says he permitted the respondents, Sam Sang Kon Lee and Kyoung Im Lee, to top certain of Mr. Liu’s trees. Mr. Liu says the Lees’ work in March 2017 left one dead and dangerous tree (Tree). Mr. Liu claims $3,500, the cost he says to cut down the Tree.

2.      The respondents, Sam Sang Kon Lee and Kyoung Im Lee, deny killing the Tree, saying it was already decrepit due to Mr. Liu’s neglect.

3.      Mr. Lee counterclaims for $1,650, which is largely for his time and his cost to clean up a 500-pound branch from a different tree owned by Mr. Liu (Branch), which Mr. Lee says Mr. Liu cut and left on his property in June 2020. Mr. Liu says it is the Lees’ responsibility to trim any tree branches overhanging onto their property. Mr. Liu also denies cutting the Branch and throwing it onto the Lees’ property.

4.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.      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). Section 2 of the CRTA states that 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 the dispute’s parties that will likely continue after the CRT process has ended.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. Here, I find that I am able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says 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.

8.      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.

ISSUES

9.      The issues in this dispute are:

a.    Did the Lees damage Mr. Liu’s Tree when pruning it, and if so is Mr. Liu entitled to $3,500 for the Tree’s removal?

b.    Is Mr. Liu responsible for the clean-up costs related to his Branch on the Lees’ property?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicant Mr. Liu must prove his claims on a balance of probabilities. Mr. Lee must similarly prove his counterclaim. I have read all the parties’ submissions but refer only to the evidence and submissions that I find relevant to provide context for my decision.

 

The Tree – Mr. Liu’s $3,500 claim

11.   The parties agree to the following facts:

a.    In January 2017, the Lees obtained Mr. Liu’s permission to trim or top 5 trees on Mr. Liu’s property (one of which was the Tree).

b.    In March 2017, the Lees had the 5 trees topped.

12.   Mr. Liu submitted a somewhat blurred photo of the 5 trees, saying it shows the trees were healthy prior to the Lees’ trimming. This photo shows the upper portion of the Tree, with some leaves. Mr. Liu submits that “right after cutting” the Tree died. Mr. Liu submitted a more close-up photo of the Tree after he says it died, and it has lost its leaves. Mr. Lee submitted a photo from his side of the property line, before he topped the Tree, and it shows the Tree has some leaves but is also bare in some areas.

13.   First, I cannot tell from these photos that the Tree was in fact healthy before topping, as Mr. Liu alleges. I also cannot tell from the later photo that the Tree is in fact dead or that the Lees’ topping of it harmed it.

14.   Second, the evidence shows it was not until September 20, 2018 that Mr. Liu first complained in an email to the Lees about the “dead” Tree. In particular, Mr. Liu wrote, “we just noticed” that the Tree had died. This was 18 months after the Lees’ topping, not “right after cutting”.

15.   Mr. Liu submitted no expert evidence about the Tree, and in particular about whether the Lees’ topping had caused its death. I find the issue of whether the Lees’ topping caused the Tree to die is a subject outside ordinary knowledge and requires expert evidence (see Bergen v. Guliker, 2015 BCCA 283).

16.   Mr. Lee submitted an October 14, 2020 report from John P. Martyn, which says he has been in the arboriculture field for 23 years and is a member in good standing of the American Society of Consulting Arborists, the International Society of Arboriculture, and the Tree Care Industry Association. Mr. Martyn’s report sets out the opinions are his own and that he is independent. He described the assignment as assessing whether Mr. Lee’s topping in March 2017 resulted in the premature death of the Tree (which was identified as tree #3 in Mr. Martyn’s report). I accept Mr. Martyn’s report as expert evidence under the CRT’s rules.

17.   In his report, Mr. Martyn identified the Tree as a Western Hemlock. Mr. Martyn wrote that the Tree was in fair condition, whereas another adjacent Hemlock (which Mr. Martyn labelled as tree #2, also topped in March 2017) was in poor condition. In this section of his report, it appears Mr. Martyn has conflated the Tree and the tree he identified as #2. However, overall, I find nothing turns on this given Mr. Martyn’s subsequent specific comments about the Tree, as supported by the photos appended to his report.

18.   Mr. Martyn’s report, and accompanying photos, show that the Tree had a large “conk” growth attached to it. Mr. Martyn said when conks, a decay organism, appear on a tree, it usually indicates well-advanced internal decay. The wood would have deteriorated to the point where the tree may be structurally unsound, causing the stem to break. Mr. Martyn wrote that removal of affected trees would be recommended, as they pose a safety hazard.

19.   Mr. Martyn also wrote that the Tree was showing significant “dieback” by 2017. Mr. Martyn wrote that the Tree’s topping basically “put the tree over the edge with virtually no chance of recovery”. However, Mr. Martyn added that given the Tree’s condition, if it had not been topped and given the conk’s presence, he believed the Tree would likely have died within 2 to 4 years and perhaps even 1 or 2. He concluded, “clearly, in my opinion, this tree was not bouncing back, regardless of whether it was topped or not.” Mr. Martyn also described how the Tree and surrounding trees lacked sufficient water. I accept Mr. Martyn’s expert opinion.

20.   On balance, I find there is no evidence that Mr. Lee was negligent in the Tree’s topping, which as noted above was done with Mr. Liu’s permission. There is no evidence that Mr. Lee knew or ought to have known that topping the Tree would put it “over the edge”, and as noted Mr. Liu did not complain of the Tree’s “death” until 18 months after topping, which is consistent with Mr. Martyn’s timeline described above. Given Mr. Liu’s consent to the topping, I find his claim for compensation cannot succeed.

21.   I would have dismissed Mr. Liu’s claim in any event, as he provided no evidence in support for the $3,500 figure, such as a quote for the Tree’s removal. Given my conclusions above, I dismiss Mr. Liu’s $3,500 claim.

22.   Finally, I note Mr. Liu submits Mr. Lee damaged his fence while topping the trees. Mr. Lee says the fence was old, which Mr. Liu expressly acknowledged in a December 25, 2016 email where he also suggested it would be welcome if Mr. Lee replaced the “very old” fence when he trimmed the trees. It is undisputed Mr. Lee replaced the fence at his own cost. Since Mr. Liu does not claim any compensation for the fence, I make no order about it.

The Branch – Mr. Lee’s $1,650 counterclaim

23.   A June 11, 2020 photo in evidence shows the Branch still attached to its tree, leaning well over onto Mr. Lee’s side of the property line. It is undisputed that on June 12 Mr. Lee emailed Mr. Liu to ask that he take care of the tree as the Branch was leaning on his fence. Later, on June 16, the Branch fell onto the Lees’ cedar hedge that was against their side of the parties’ shared fence. As set out in a surveillance camera video in evidence, I find the Branch fell onto the Lees’ property because Mr. Liu cut the tree and left the Branch for the Lees to deal with, as discussed further below.

24.   In his Dispute Response filed at the outset of this proceeding, Mr. Liu said the Branch fell onto Mr. Lee’s property due to wind, rather than Mr. Liu cutting it. Weather reports submitted by Mr. Lee show it was not windy in mid-June 2020. I do not accept a severe wind caused the Branch to fall, and my further reasons follow.

25.   Mr. Liu later submits he only “cut up to the property line” and “the rest was not my responsibility”. Mr. Liu also now submits, “[Mr. Lee] said [the Branch] was leaning down on fence so I cut the portion of the branch that was on my side of the property and the other side of branch fell onto Mr. Lee’s property” (quote reproduced as written, except where indicated).

26.   I turn to the law of nuisance, which is what applies here. A nuisance is defined as the unreasonable interference with the use and enjoyment of property. The focus is on the harm suffered, rather than the wrongful conduct. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence, provided that the harm can be characterized as a nuisance (St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 at paragraph 77).

27.   As I found in my earlier decision of Bonilla v. Francescini et al, 2018 BCCRT 169, the law is clear that a homeowner is entitled to trim the branches of their neighbour’s tree to the extent those branches extend over the property line onto the homeowner’s property, and so long as the homeowner does not trespass in doing so (see Anderson v. Skender, 1993 Canlii 2772 (BCCA) at paragraph 15).

28.   However, contrary to Mr. Liu’s suggestion, nothing required Mr. Lee to trim the Branch. Doing so was Mr. Liu’s obligation when it causes a nuisance for others. Mr. Liu is incorrect in his assertion that airspace rights unconditionally made Mr. Lee responsible for the Branch that overhung onto Mr. Lee’s property.

29.   To be a nuisance, the interference must be both substantial and unreasonable. “Substantial” interference has been defined as non-trivial. Generally, if the interference causes physical damage, it will usually be “unreasonable.” (see Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at paragraphs 19 and 50, and Royal Ann Hotel Co. v. Village of Ashcroft (1979), 1979 CanLII 2776 (BCCA)).

30.   However, when it comes to trees, an award of damages will depend on whether the nuisance was known or ought to have been known and whether reasonable steps were taken to remedy the nuisance (see Hayes v. Davis, 1991 CanLII 5716 (BCCA) and Lee v. Shalom Branch #178 Building Society, 2001 BCSC 1760).

31.   Here, I find the evidence shows Mr. Liu knew the Branch could likely fall onto Mr. Lee’s property and that it could cause damage. The June 11, 2020 photo and Mr. Liu’s own submissions, summarized above, make this clear. Mr. Liu admittedly left the Branch for Mr. Lee to deal with because Mr. Liu was under the mistaken belief that the overhanging Branch was Mr. Lee’s responsibility, not his. So, I find Mr. Liu is responsible in nuisance for the damage the Branch caused to Mr. Lee’s property.

32.   Mr. Lee claims $1,650, which Mr. Liu submits is too high without supporting evidence. Most of the $1,650 is for CRT fees and dispute-related expenses, which I address below. Otherwise, Mr. Lee claims $350 for replacement of 3 damaged cedars and $100 for removal of the Branch. I find the $450 reasonable and, in addition to the photos in evidence, supported by a quote and invoice. On the evidence before me, Mr. Liu did not clean up the Branch as asked, and after a month Mr. Lee hired a landscaper to do it. I find Mr. Liu must reimburse Mr. Lee $450.

33.   The Court Order Interest Act (COIA) applies to the CRT. Mr. Lee is entitled to pre-judgment interest under the COIA on the $100, from July 17, 2020, the date the Branch was removed, to the date of this decision. This equals $0.17. I make no order for interest for the cedars’ replacement, as the evidence indicates Mr. Lee has not yet incurred that expense.

34.   Under section 49 of the CRTA and the CRT’s rules, as Mr. Liu was unsuccessful in this dispute, I find he is not entitled to reimbursement of CRT. Mr. Lee was successful in his nuisance claim and so I find Mr. Liu must reimburse him $125 in paid CRT fees. I say the same about the $550 for Mr. Martyn’s report, which I found useful and the invoice amount reasonable. I dismiss Mr. Lee’s claim for $525 for “research time”, for which he provided no breakdown. In any event, under the CRT’s rules, a party is generally not compensated for “time spent” dealing with a dispute, consistent with the CRT’s rules about not ordering reimbursement for legal fees unless the matter is extraordinary. There is nothing extraordinary about this simple nuisance dispute.

ORDERS

35.   Within 30 days of this decision, I order Mr. Liu to pay Mr. Lee a total of $1,125.17, broken down as follows:

a.    $450 in damages,

b.    $0.17 in pre-judgment COIA interest, and

c.    $675, for $125 in CRT fees and $550 in dispute-related expenses.

36.   Mr. Lee is entitled to post-judgment interest, as applicable. I dismiss Mr. Liu’s claims and Mr. Lee’s remaining claims.

37.   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.

38.   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.