Date Issued: February 1, 2023

File: SC-2022-004255

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Gover v. Ceejay Construction Ltd., 2023 BCCRT 91

Between:

NUALA FALLOWS GOVER

 

Applicant

And:

CEEJAY CONSTRUCTION LTD.

 

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      The applicant, Nuala Fallows Gover, says the respondent, Ceejay Construction Ltd. (Ceejay), damaged her fence when in around March 2021 Ceejay excavated its neighbouring property close to her property’s fence line. Mrs. Gover says Ceejay failed to provide adequate lateral support for her property, causing the fence to collapse in June 2022. Mrs. Gover claims $3,675 for replacement fencing.

2.      Ceejay denies that its excavation damaged the fence. Ceejay says the fence was old and poorly maintained by Mrs. Gover and her spouse, which Mrs. Gover denies. Ceejay also says that ultimately Mrs. Gover’s spouse pushed the fence over in June 2022. Ceejay asks that I dismiss the claim.

3.      Mrs. Gover is self-represented. Ceejay is represented by its owner, Charles Johanson.

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). CRTA section 2 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.      CRTA section 39 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. 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.      CRTA section 42 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.

ISSUE

8.      The issue in this dispute is whether Ceejay’s excavation work damaged Mrs. Gover’s fence, and if so, is Mrs. Gover entitled to the claimed $3,675 in damages for replacement fencing.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant Mrs. Gover must prove her claim on a balance of probabilities (meaning “more likely than not”). I have read the parties’ submitted documentary evidence and arguments but refer only to what I find relevant to provide context for my decision.

10.   In around March 2021, Ceejay began excavating its property that was adjacent to Mrs. Gover’s. Mrs. Gover’s property had a wood fence staggered down her side of the sloping property line. Photos in evidence show that after the excavation there is also a steep slope from the fence down into the excavated grade level of Ceejay’s property. Ceejay’s construction completed in September or October 2021 (I find the exact date does not matter). None of this is disputed.

11.   I turn to the applicable law. I find Mrs. Gover’s claim is based in the law of negligence and private nuisance.

12.   First, a nuisance occurs when a person unreasonably interferes with the use or enjoyment of another person’s property. However, if the person is not aware of the problem that causes the interference, and has no reason to know about it, they will not be liable because they did not act unreasonably: see Theberge v. Zittlau, 2000 BCPC 225.

13.   Second, in order to succeed in a claim negligence, as the applicant Mrs. Gover must show Ceejay owed her a duty of care, that Ceejay failed to meet that duty, and that failure resulted in the claimed damages. The claimed damages must also be reasonably foreseeable (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

14.   Here, whether in negligence or nuisance, I find this dispute turns on whether Mrs. Gover has proved Ceejay caused her fence to lose stability and lean or list to the point that the fence either fell or needed to be taken down. Mrs. Gover submits the fence “gradually was slipping and finally collapsed in June 2022”. Ceejay does not dispute this description or timeline, though as noted it says Mrs. Gover’s spouse ultimately pushed the fence over in June 2022. Mrs. Gover says her spouse only took some panels down because they were leaning so heavily. I find nothing turns on exactly how the fence finally collapsed.

15.   When the allegation involves subjects beyond common knowledge and experience, such as whether a professional’s or trade’s work was below a reasonable standard or if that trade’s work caused damage, the party making the allegation (here, Mrs. Gover) must generally provide expert evidence to prove it (see Bergen v. Guliker, 2015 BCCA 283). The exceptions to this general rule are when the deficiency is not technical in nature or where the work is obviously substandard (see Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112).

16.   As noted above, Mrs. Gover says that her fence was in good condition before the excavation and alleges that Ceejay failed to provide required lateral support, and says as a result her fence then gradually began listing or leaning until in June 2022 it was collapsing. In contrast, Ceejay says the fence was old and poorly maintained before excavation started.

17.   I turn then to the evidence before me and whether it is obvious that Ceejay’s excavation caused the claimed fence damage. I find the submitted photos show the following. Ceejay’s excavation and related banked slope extended to about 3 feet away from Mrs. Gover’s fence. The fence was largely upright before the excavation. However, significantly, there was one panel at the top of the fence’s slope that was already leaning over towards Ceejay’s property. After excavation, undated photos show the fence began to lean more significantly towards Ceejay’s property. Mrs. Gover does not dispute the fence was over 15 years old, as Ceejay asserts.

18.   Given the fence’s undisputed age and the one leaning panel, I cannot conclude from the submitted photos that it is obvious Ceejay’s excavation led to the fence’s leaning so severely that it collapsed or needed to be taken down over a year later. I say this given Mrs. Gover’s own evidence that the fence “gradually” slipped over the period between March or April 2021 and June 2022. In other words, I cannot conclude it is obvious that the gradual slipping was due to slope instability caused by the excavation, as opposed to some other issue that was already causing that one fence panel to lean.

19.   Next, what about expert evidence? Mrs. Gover relies on a March 31, 2021 email from LK, the Chief Building Inspector for the Municipality of North Cowichan. In it, LK wrote that “the new foundation wall will retain a portion of the side yard grade” and that Ceejay had retained a geotechnical engineer to design and supervise a rock retaining wall to complete the retained side yard. Mrs. Gover argues no retaining wall was ever built. Yet, photos in evidence show there are what appear to be foundation walls being laid in the early construction stage, and after Ceejay’s house was built there is a rock retaining wall. In any event, even if LK’s email qualified as expert evidence under the CRT’s rules, it does not prove Ceejay failed to comply with any municipal requirements. More importantly, it also does not prove Ceejay’s excavation caused the fence to list or lean and ultimately collapse.

20.   Mrs. Gover also submitted a June 12, 2022 quote for $3,675 from Cedar Edge Designs for replacement of the damaged fence panels and posts. However, there is nothing in this quote that says why the old fence collapsed, and in particular it does not mention Ceejay’s neighbouring excavation. So, I find this quote is not expert evidence and it does not prove Ceejay’s excavation damaged Mrs. Gover’s fence.

21.   In short, Mrs. Gover submitted no expert evidence that says Ceejay’s excavation caused her fence to collapse. As noted, she has the burden to prove her claim. Given my conclusions above, I find it unproven that Ceejay’s excavation caused Mrs. Gover’s fence to lean and ultimately collapse. So, I dismiss Mrs. Gover’s claim. Given this, I do not need to address Ceejay’s arguments about shrubbery, added lattice post-excavation, and other allegations about the fence’s maintenance.

22.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As Mrs. Gover was unsuccessful, I dismiss her claim for reimbursement of CRT fees. Ceejay did not pay fees and neither party claims dispute-related expenses.

ORDER

23.   I dismiss Mrs. Gover’s claim and this dispute.