Date Issued: February 2, 2024

File: SC-2022-008638

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Wong v. Eckford, 2024 BCCRT 105

Between:

JACK WONG and SIU LING WONG

Applicants

And:

LINDA ECKFORD

Respondent

REASONS FOR DECISION
Tribunal Member:	Peter Mennie

INTRODUCTION

1.      This is a dispute between neighbours about a fence.

2.      The applicants, Jack Wong and Siu Ling Wong, own a property next to the respondent, Linda Eckford. The Wongs say Ms. Eckford built a fence which crosses into their property. The Wongs ask for an order that Ms. Eckford pay the cost of their land survey, the cost of removing the parts of the fence on their property, and the cost of replacing a wooden surveyor stake that was removed. The Wongs say their damages should be $3,000 in total.

3.      Ms. Eckford says that the Wongs have not provided a legal survey to prove that the fence is on their property. She also says that the previous owner of the Wongs’ property agreed to the fence’s location.

4.      Jack Wong represents the Wongs. Ms. Eckford represents herself.

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.

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. 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.

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.

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.

ISSUE

9.      The issue in this dispute is what, if any, damages the Wongs should receive for:

a.    The land survey,

 

b.    The fence removal, or

 

c.    The replacement of the wooden surveyor stake.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the Wongs must prove their claims on a balance of probabilities, meaning more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

11.   It is undisputed that the parties own adjoining properties. Ms. Eckford says she paid a contractor to build a new fence in September 2020. She admits that the contractor did not prepare a survey before building the fence. Instead, she says the previous owners of the Wongs’ property agreed to the fence’s location. She says she found out later that the Wongs owned the property in September 2020 and the previous owners were tenants as part of a rent-back agreement.

12.   I find it unlikely that the previous owners of the Wongs’ property would have agreed to the fence’s location. They had already sold their property to the Wongs at this time and had no right to consent to a fence being built on the property. Mr. Wong’s evidence, which I accept, is that he spoke with the previous owners who said they told Ms. Eckhart to speak with the Wongs. I find that Ms. Eckhart built the fence without confirming the property boundaries with a survey and without obtaining the consent of either the Wongs or the previous owners.

13.   In late 2020, the Wongs retained a contractor to look into renovating their property. The contractor informed the Wongs that Ms. Eckford’s fence crossed onto the Wongs’ property. The Wongs hired J.E. Anderson & Associates who prepared a survey dated March 9, 2021. This survey shows that Ms. Eckford’s fence crosses into the Wong’s property. The surveyor determined the boundary between the parties’ properties by reference to an iron post and a wooden stake located between the properties. The Wongs paid $762.56 to have this survey completed.

14.   The Wongs also provided a survey done by the local municipality dated June 6, 2023. The 2023 survey recognizes the boundary between the parties’ properties as running from the iron post noted in the March 9, 2021 survey and a second iron post near the road. The Wongs provided photographs showing that the new iron post near the road replaced the wooden stake referenced in the March 9, 2021 survey.

15.   Ms. Eckford says that the March 9, 2021 survey is not a “legal survey”, meaning it cannot be registered in the Land Title Office, so it does not prove that her fence is on the Wongs’ property. She provided an email from a practice advisor at the Association of BC Land Surveyors. The practice advisor says that J.E. Anderson & Associates did not locate survey evidence at either end of the property boundary and instead relied only on the iron post and wooden stake. The practice advisor’s opinion was that the Wongs could not rely on the survey for a definitive location of the property boundary.

16.   Under CRT rule 8.3(3), the CRT may accept expert opinion evidence from a person the CRT decides is qualified by education, training, or experience to give that opinion. Based on their position as a practice advisor at the Association of BC Land Surveyors, I accept that the practice advisor is qualified to provide evidence about the survey. However, I do not accept that the practice advisor’s opinion is determinative. The practice advisor’s email is from 2021 and there is now an updated legal survey done by the municipality in 2023.

17.   I find that the survey dated March 9, 2021, proves that Ms. Eckford’s fence crosses into the Wongs’ property. J.E. Anderson & Associates established the property boundaries by reference to an iron post and the wooden stake which was later replaced with another iron post. An iron post is recognized under the General Survey Instruction Regulation as a valid instrument for marking boundaries between properties. These iron posts were confirmed in the 2023 legal survey prepared by the municipality. So, I find that the March 9, 2021 survey correctly determined the property boundary and that Ms. Eckford’s fence does cross into the Wongs’ property.

18.   I turn to the question of damages.

19.   I start with the Wongs’ claim for the cost of the March 9, 2021 survey. In Graham v. Golden Gate Developments Inc., 2013 BCSC 1890, the court did not order payment for fence surveys because neither party had “improperly caused the incurring” of the survey expenses. Based on Graham, I find that the Wongs must prove that Ms. Eckford improperly caused them to incur the survey fee for Ms. Eckford to be liable. For the following reasons, I find that they have.

20.   As noted above, I find that Ms. Eckford built the fence without preparing a survey or obtaining the consent of the Wongs or the previous property owners. The Wongs would not have needed to pay for a survey if Ms. Eckford had confirmed the property boundaries before building the fence. I find that Ms. Eckford must pay the Wongs $762.56 for the cost of their survey.

21.   I turn next to the Wongs’ claim for the costs of removal of the fence. There is no evidence that the Wongs have paid or will pay these expenses. The purpose of tort damages is to compensate an individual for losses actually sustained. So, I have considered this part of the Wongs’ claim as part of an alternative claim for damages for trespass.

22.   Trespass to land occurs when someone enters another person’s property without lawful justification and directly interferes with it. This is different from nuisance, which occurs when a person uses their own property in a way that indirectly affects another person’s use of their property (see Lahti v. Chateauvert, 2019 BCSC 1081 at paragraph 6).

23.   As noted above, I find that Ms. Eckford’s fence crosses onto the Wongs’ property. This was done without legal justification. The fence does interfere with the Wongs’ use of their property, however it occupies only a small area and the Wongs still have the use and enjoyment of most of their property. On a judgment basis, I award the Wongs $100 for the fence’s continuing trespass.

24.   Finally, I turn to the Wongs’ claim for damages for the removal of a wooden stake used as part of the surveyor’s work. The Wongs say the stake was pulled up and thrown into their yard by an unknown person. The Wongs do not state specifically that they think Ms. Eckford did this. In any event, on the evidence before me I am unable to determine who pulled up the wooden stake. I find that Ms. Eckford is not responsible for repaying this cost. So, I dismiss the Wongs’ claim for damages related to the removed wooden stake.

25.   I make no findings about Ms. Eckford’s obligation to remove the fence. Under section 36(2) of the Property Law Act, the Wongs may apply to the BC Supreme Court (BCSC) for an order removing the fence or for an order for compensation if the BCSC declares an easement or vesting order for the encroached land. Nothing in this decision prevents the Wongs from bringing an application in the BCSC under section 36(2) of the Property Law Act.

INTEREST, FEES, AND EXPENSES

26.   The Court Order Interest Act applies to the CRT. The Wongs are entitled to pre-judgment interest on the $762.56 survey fee from April 9, 2021, the date of the invoice, to the date of this decision. This equals $50.19.

27.   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. The Wongs were successful in establishing that Ms. Eckford’s fence crossed into their property which was the main issue in this dispute. I find that the Wongs are entitled to reimbursement of $125 in CRT fees.

28.   The Wongs claim $325.29 for the cost of a process server to give the Dispute Notice to Ms. Eckford. Under the CRT rules, the CRT will ordinarily serve a respondent by regular mail. I find that using a process server to deliver the Dispute Notice to Ms. Eckford was not necessary and do not order any reimbursement of this cost. Ms. Eckford did not claim any dispute-related costs.

ORDERS

29.   Within 30 days of the date of this order, I order Ms. Eckford to pay the Wongs a total of $1,037.75, broken down as follows:

a.    $862.56 as damages,

b.    $50.19 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

30.   The Wongs are entitled to post-judgment interest, as applicable.

31.   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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.