Date Issued: January 20, 2021

File: SC-2020-007109

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tartaglia v. Surkan, 2021 BCCRT 67

Between:

ELIA TARTAGLIA

Applicant

And:

LARRY SURKAN and JANICE SURKAN

RespondentS

INTRODUCTION

1.      The applicant, Elia Tartaglia, and the respondents, Larry Surkan and Janice Surkan, are neighbours. This is a dispute about the Surkans’ trees whose branches hang over the property line and into Ms. Tartaglia’s yard. Ms. Tartaglia says the Surkans refuse to maintain the trees and the branches are growing into her roof and gutters. She seeks $1,548.75 for the cost of pruning the trees in 2018. Ms. Tartaglia also seeks an order that the Surkans maintain or remove their trees.

2.      The Surkans say the trees are protected by the city and they are not permitted to trim the branches, but Ms. Tartaglia is allowed.

3.      Ms. Tartaglia and the Surkans are each self-represented.

JURISDICTION AND PROCEDURE

4.      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.

5.      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. Here, I find that I am properly 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.

6.      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.

7.      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.

8.      In his submissions, Mr. Surkan stated that “This dispute is confidential only to the parties involved”. He did not explain what he meant by this. Despite Mr. Surkan’s comment, and noting he did not specifically request anonymization, I find there is no reasonable basis to anonymize here

ISSUES

9.      The issues in this dispute are:

a.    Whether the Surkans’ trees are overhanging into Ms. Tartaglia’s property,

b.    If so, the appropriate remedy, and

c.    Whether the Surkans must maintain or remove their trees.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, as the applicant Ms. Tartaglia bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

11.   It is undisputed that the trees are located on the Surkans’ property. It is also undisputed that the trees’ branches have been overhanging onto Ms. Tartaglia’s property. It is also undisputed that the trees have not yet caused any damage to Ms. Tartaglia’s property.

Limitation Act

12.   Ms. Tartaglia seeks $1,548.75 for the cost she incurred in June 2018 to hire a tree service company to prune the Surkans’ trees back to the property line. However, Ms. Tartaglia filed her CRT application for dispute resolution on September 14, 2020, which raises an issue of whether it is statute barred (out of time).

13.   The Limitation Act (LA) applies to CRT disputes. The LA sets out limitation periods, which are specific time limits for pursuing claims. If the time limit expires, the right to bring the claim disappears.

14.   Section 6 of the LA says that the basic limitation period is 2 years, and that a claim may not be started more than 2 years after the day on which it is discovered. A claim is “discovered” when the applicant knew or reasonably knew they had a claim against the respondent and a court or tribunal proceeding was an appropriate remedy.

15.   Since the Surkans did not specifically raise a limitation defence in their Dispute Response, I asked the parties for further submissions about whether the LA affected Ms. Tartaglia’s claim for damages.

16.   Ms. Tartaglia stated that she was unaware of the 2 year limitation period or that she could file a claim with the CRT until she was told by a municipal employee on June 22, 2020. She also says the delay was caused by the Surkans’ failure to respond to her numerous attempts to resolve the issue. The Surkans simply stated that the LA applies to this dispute.

17.   While I am not bound by it, I agree with the reasoning in Rodriguez v. Dollarama GP Inc. et al, 2019 BCCRT 943 that, absent unusual circumstances (that do not exist here), an applicant is deemed to discover their claim when the events they complain of occur, not when they receive legal advice about their claim (see paragraph 15). Otherwise, a person could delay the application of the limitation period indefinitely simply by waiting to seek legal advice or information.

18.   The test is not only whether Ms. Tartaglia knew she could bring a court or CRT proceeding, it is also whether she reasonably ought to have known she could bring a court or CRT proceeding.

19.   The fact that the parties are trying to resolve a dispute does not displace a person’s right to seek a remedy through the courts (see Arbutus Environmental Services Ltd. v. South Island Aggregates Ltd., 2017 BCSC 1 at paragraph 19).

20.   I find the claim against the Surkans was discovered when Ms. Tartaglia received the tree trimming invoice on June 11, 2018. Also, I find Ms. Tartaglia reasonably “ought to have known” that a court proceeding“would be an appropriate means to seek a remedy having regard to the fact that, in Ms. Tartaglia’s view, the Surkans ought to maintain the trees on their property.

21.   So, I find that the limitation period expired 2 year after the invoice was issued, which was June 11, 2020. Since Ms. Tartaglia did not submit her application until September 14, 2020, I find her claim for $1,548.75 is out of time and is statute barred by the Limitation Act. I dismiss this claim on that basis.

22.   However, nothing in this decision about the June 2018 invoice prevents Ms. Tartaglia from filing a new claim in the future if she pays for similar tree pruning services under similar circumstances, subject to the applicable limitation period for that new claim.

Order for maintaining or removing the trees.

23.   Ms. Tartaglia also seeks an order for the Surkans to maintain or remove the trees on their property that overhang onto her property.

24.   The law of nuisance 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 (see Anderson v. Skender, 1993 Canlii 2772 (BCCA) at paragraph 15).

25.   A person is entitled to use and enjoy their land without unreasonable interference. When there is actual physical damage, there is a strong indication that the interference is not reasonable (see Royal Ann Hotel Co. v. Ashcroft, 1979 CanLii 2776 BCCA)).

26.   A homeowner is entitled to an award for damages if a neighbour failed to take reasonable steps to remedy the nuisance (see Lee v. Shalom Branch #178 Building Society, CanLii 2001 BCSC 1760).

27.   I am not prepared to make a prospective or future order about future maintenance of the Surkans’ trees and branches. I find these are requests for injunctive relief – orders that a party do or stop doing something. The CRT’s small claims jurisdiction is set out in the CRTA. The CRT generally does not have jurisdiction to order injunctive relief in a claim brought under the CRT’s small claims jurisdiction, other than specific performance of an agreement about personal property or services. There is no such agreement here. Accordingly, I decline to grant the requested remedies.

28.   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. Since Ms. Tartaglia was unsuccessful, I dismiss her claim for CRT fees. The Surkans did not claim dispute-related expenses.

ORDER

29.   I dismiss Ms. Tartaglia’s claims and this dispute.