Date Issued: September 3, 2021

File: SC-2020-008679

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tubbesing v. Meyers, 2021 BCCRT 970

Between:

RUTH TUBBESING

Applicant

And:

LUYDMILA MEYERS and LUYDMILA MEYERS, Executor of the Estate of JOHN PETZ, deceased

Respondents

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about a fence along or near the property line between neighbouring residential properties. The applicant, Ruth Tubbesing, owns the property east of the fence. The property west of the fence was owned by John Petz, who is now deceased. The respondent Luydmila Meyers looked after John Petz’s property before his death, and is now the executor of his estate. Ms. Meyers is named as a respondent both in her personal capacity and as executor of John Petz’s estate.

2.      In November 2018, Ms. Meyers hired a contractor to take down the old fence and build a new fence (second fence) between the properties. Ms. Tubbesing felt the second fence was not straight and encroached on her property. She obtained a land survey to confirm the fence partially encroached on her property and asked Ms. Meyers to remove it. When Ms. Meyers did not comply, Ms. Tubbesing had a contractor remove the second fence and construct a new fence (third fence) entirely on Ms. Tubbesing’s property. Ms. Tubbesing seeks $3,263.71, which includes the cost of removing the second fence, half the land survey cost, half the third fence cost, and the full cost of legal advice she obtained.

3.      Ms. Meyers generally denies Ms. Tubbesing’s claims and also says they are out of time under the Limitation Act.

4.      Ms. Tubbesing is self-represented. Ms. Meyers made the same submissions in her personal capacity and in her capacity as executor of John Petz’s estate.

5.      For the reasons that follow, I dismiss Ms. Tubbesing’s claim against Ms. Myers in her personal capacity. I allow Ms. Tubbesing’s claim in part against Ms. Meyers as executor of Mr. Petz’s estate.

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). 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.

7.      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.

8.      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.

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.

10.   The Property Law Act (PLA), at section 36(2) says that a land owner may apply to the BC Supreme Court for certain remedies if, on a land survey, a fence is shown to be improperly located so as to enclose adjoining land. Those remedies include a declaration of easement or title with compensation, or an order to remove the encroaching fence. The CRT cannot grant these remedies, which include injunctive relief relating to real property.

11.   I find that none of the relief Ms. Tubbesing seeks is real property relief governed by the PLA.  Ms. Tubbesing’s claims are for damages in trespass. I find these claims fall within the CRT’s jurisdiction.

ISSUES

12.   The issues in this dispute are:

a.    Are Ms. Tubbesing’s claims out of time under the Limitation Act?

b.    If not, are Ms. Tubbesing’s claims properly against Ms. Meyers in her personal capacity or as executor of Mr. Petz’s estate?

c.    To what extent, if any, is Ms. Meyers responsible for the Ms. Tubbesing’s claimed fence, land survey, and legal expenses?

EVIDENCE AND ANALYSIS

13.   As the applicant in this civil dispute, Ms. Tubbesing must prove her claims on a balance of probabilities, meaning more likely than not. I have considered all the parties’ evidence and submissions, but only refer to what is necessary to explain my decision.

14.   Mr. Petz passed away on August 13, 2018. It is undisputed that before his death, Ms. Meyers managed his property, which was rented out to tenants.

15.   It is undisputed that after Mr. Petz’s death, Ms. Meyers acted in the capacity of executor. The court granted probate of Mr. Petz’s estate on December 18, 2018, and Mr. Petz’s property was then transferred into Ms. Meyers’ name as executor of Mr. Petz’s estate.

16.   It is undisputed that Ms. Tubbesing’s property and Mr. Petz’s property are divided by a straight line. Previously there was a picket fence. I accept Ms. Tubbesing’s uncontested assertion that this first fence straddled the property line. I also find based on emails and photos from the time that pickets were falling onto Ms. Tubbesing’s property.

17.   Ms. Meyers hired a contractor to replace the fence. Although it is not clear that Ms. Tubbesing agreed to pay for part of the second fence, it is clear that Ms. Meyers instructed the contractor to speak to Ms. Tubbesing about the height and design of the second fence.

18.   Ms. Tubbesing spoke with the contractor in early November. On November 11, 2018, Ms. Tubbesing called the contractor again to clarify some details. He told her he had just finished the fence. None of this is disputed.

19.   Ms. Tubbesing says the next day she inspected the second fence and observed that it curved into her property and had other defects.

20.   Ms. Tubbesing later obtained a survey that confirmed the second fence encroached on her property. The survey said the fence was .35 feet wide and fence straddled the property line at its southern end, before curving such that its western face was .4 feet onto Ms. Tubbesing’s property, and eastern face was .75 feet (or 9 inches) onto Ms. Tubbesing’s property. Then, the fence curved back to straddle the property line where the fence met an existing chain-link fence. This was over a distance of 49 feet. I note at both ends the second fence was slightly more on Ms. Tubbesing’s property.

21.   Ms. Tubbesing wanted the second fence removed from her property. In a November 20, 2018 email, Ms. Meyers agreed that the fence was not right and agreed to ask her contractor to fix it. The contractor did not fix the second fence.

22.   In the meantime, Ms. Tubbesing sought legal advice. In an August 20, 2020, email Ms. Tubbesing said she should not have to bear the expense of Ms. Meyers’ trespass, and told Ms. Meyers that if she did not remove the second fence by September 23, 2020, Ms. Tubbesing would have it removed and would then build a fence of her own choosing on her property. Ms. Meyers did not remove the second fence or object to the fence’s removal.

23.   Ms. Tubbesing hired a contractor, who on September 29, 2020 removed all the second fence panels and stacked them on Ms. Meyers’ property. The contractor also built the third fence entirely on Ms. Tubbesing’s property. Ms. Tubbesing sought reimbursement for the second fence removal, half of the survey cost, and her legal fees. Ms. Meyers refused to pay, saying it was Ms. Tubbesing’s choice to remove the fence.

Limitation Period

24.   The Limitation Act applies to disputes before the CRT. The Limitation Act sets out limitation periods, which are specific time limits for pursuing claims. If that period expires, the right to bring a claim ends, even if the claim would have otherwise been successful.

25.   Section 6 of the Limitation Act says that the basic limitation period is 2 years from the date a claim is discovered. A claim is “discovered” when an applicant knew or reasonably ought to have known that they had a claim against the respondent, and that a court or tribunal proceeding was an appropriate remedy.

26.   Ms. Tubbesing filed her dispute application on November 11, 2020, against Ms. Meyers in her personal capacity. As noted above, the undisputed evidence is that the second fence was completed on November 11, 2018. As Ms. Tubbesing could not have discovered her claim before November 11, 2018, and she filed her dispute application on November 11, 2020, I find she filed her dispute application against Ms. Meyers in her personal capacity within the 2-year limitation period.

27.   Section 149 of the Wills, Estates and Succession Act (WESA) says a personal representative is generally liable for the deceased person’s wrongful acts and omissions or breaches of legal duty. An executor is a type of personal representative. Section 150 of WESA says a person may commence or continue a proceeding against a deceased person that could have been commenced or continued against that person if living by naming the deceased person or the personal representative.

28.   Ms. Tubbesing did not amend her Dispute Notice to add Ms. Meyers in her capacity as executor of the estate of John Petz, deceased, until February 9, 2021. Ms. Meyers says the claim against the estate is therefore long expired. On its face, the claim appears to be out of time under the Limitation Act.

29.   However, section 22(1)(d) of the Limitation Act says if a proceeding has been started within the applicable limitation period, new parties may be added or substituted even though a limitation period applicable to the claim against the new parties has expired.

30.   BC courts have considered section 22(1) of the Limitation Act within the context of rule 6-2(7) of the Supreme Court Civil Rules, which governs adding, removing or substituting parties by order. Section 31(1) of the CRTA says a case manager may provide parties with an opportunity to have other persons added as parties in accordance with the rules and any directions by the case manager. The CRT’s rules do not explicitly address adding respondents to a claim, except in the case of respondents seeking to add third parties, which is not the case here.

31.   Under rule 6-2(7) of the Supreme Court Civil Rules, a court must consider whether it would be “just and convenient” to add a party. The CRT is not a court and the Supreme Court Civil Rules do not apply to it. However, I find it is appropriate to consider the factors that the Supreme Court considers before adding a party. Where a proposed claim against a new respondent is expired under the Limitation Act, the courts consider the following factors from Letvad v. Fenwick, 2000 BCCA 630:

a.    The extent of the delay, and reasons or explanations for the delay,

b.    The degree of prejudice caused by the delay,

c.    The extent of the connection between the existing claims and the proposed new claim.

32.   I find the 3-month delay between when Ms. Tubbesing filed her original claim and when she filed the proposed claim is not a long delay. I also find it is appropriate to consider, as the courts do, Ms. Tubbesing’s self-represented status. Self-represented parties can be given “some leeway” so long as the delay is not tactical (Madadi v. Nichols, 2021 BCCA 10 at paragraph 37). I find it unlikely that Ms. Tubbesing’s delay was tactical and more likely that she was not aware of the relevant provisions of WESA for filing claims against a deceased person.

33.   Ms. Meyers has not demonstrated any prejudice to her as executor of Mr. Petz’s estate. Finally, there is a substantial connection between the claims in that both claims name Ms. Meyers in some capacity and seek the same remedies. These unique circumstances reduce the possible prejudice because Ms. Meyers was aware of the claim within the limitation period. So, I find it would be just and convenient to allow the claim against Ms. Meyers as executor of Mr. Petz’s estate to proceed.

Claim against Ms. Meyers in her personal capacity

34.   As noted, Ms. Tubbesing initially named Ms. Meyers as the respondent in this dispute. Ms. Tubbesing has not explained the legal basis of her claim against Ms. Meyers in her personal capacity. It is undisputed, and I find, that with respect to the fence at issue Ms. Meyers acted as Mr. Petz’s agent before his death, and the executor of his will after his death. As documented in an October 19, 2018 email to Ms. Meyers, Ms. Tubbesing acknowledged that repairing or replacing the original fence was “the responsibility of the late John Petz or his estate.”

35.   I find Ms. Tubbesing’s claim is properly against Ms. Meyers as executor of Mr. Petz’s estate. I dismiss the claim against Ms. Meyers in her personal capacity.

Claim in trespass

36.   The tort of trespass to land is committed by entering upon another’s land without lawful justification: Henderson v. Bakken, 2010 BCSC 559. Mistake is not a defence to trespass. As noted above, the land survey showed that the second fence encroached onto Ms. Tubbesing’s property. Ms. Meyers does not dispute the survey’s accuracy, so I find the second fence was a trespass to land.

37.   Ms. Tubbesing believes Ms. Meyers ordered the fence to encroach on her property intentionally, for some unstated purpose. In contrast, Ms. Meyers says she asked the contractor to build the fence solely on Mr. Petz’s property. Neither party submitted any evidence from the contractor in this dispute. 

38.   Generally, people who hire independent contractors are not vicariously liable for the torts (wrongful acts) of their contractors. However, a property owner may be liable for their contractor’s trespass if the owner instructed the contractor to trespass, either intentionally or mistakenly: Glashutter v. Bell, 2001 BCSC 1581.  Property owners may also be liable for their contractor’s trespass if they were negligent in selecting or supervising their contractor. This means that Ms. Tubbesing must prove that Mr. Meyers told the contractor to trespass by building the fence partially on Mr. Petz’s property, or failed to exercise reasonable care in selecting and supervising the contractor.

39.   I find there is no evidence that Ms. Meyers purposely or accidentally told the contractor to build the fence over the property line. I find it equally likely that the contractor built the fence over the property line through their own error. Similarly, there is no evidence that the contractor was not qualified, or that Ms. Meyers should have known her contractor would trespass.

40.   As noted above, Ms. Tubbesing bears the burden of proof. I find she has not proved that Ms. Meyers instructed her contractor to trespass on Ms. Tubbesing’s property.  I dismiss Ms. Tubbesing’s claim for reimbursement of the second fence removal cost.

41.   It follows that I find Ms. Meyers does not have to pay for Ms. Tubbesing’s land survey.  I also find the survey was unnecessary given Ms. Meyers acknowledged that the fence encroached on Ms. Tubbesing’s property.

42.   I find Ms. Meyers did not agree to share the cost of the third fence that Ms. Tubbesing built on Ms. Tubbesing’s property. In the absence of agreement, I see no reason Ms. Meyers should be responsible for that cost.

43.   I also dismiss Ms. Tubbesing’s claim for $660.33 in legal fees. Even if Ms. Tubbesing had been successful in her trespass claim, I would have dismissed this claim anyway as the CRT does not generally allow legal fees, consistent with its rules that parties are to represent themselves.

44.   Under section 49 of the CRTA and CRT rules, as Ms. Tubbesing was unsuccessful, I find she is not entitled to reimbursement of CRT fees or dispute-related expenses.

 

ORDER

45.   I dismiss Ms. Tubbesing’s claims and this dispute.