B.C. court awards $22K in damages in neighbour dispute over trees

CTV News

6 days ago

A B.C. judge has settled a dispute between neighbours over the felling of five fir trees, describing the case as a 'dismal and avoidable exercise.'
Shelagh Margaret Prowal filed a civil suit seeking $100,000 in damages for trespassing during an incident in which a contractor hired by her neighbours chopped down the 30-metre-tall trees on her Boston Bar property, according to a decision posed online Tuesday.
The neighbours, Sean Kevin Court and Trista Lynn Court, did not dispute that they told a hired tree faller to cut down the mature Douglas Firs.
'The defendants do not dispute that the trees were cut on their instructions, or that the trees were located on the plaintiff's property: they allege that the plaintiff provided consent,' Justice David A. Crerar's decision said.
The decision – which awarded Prowal just over $22,000 in damages – came after a trial that saw problematic testimony from the both the plaintiff and the defendant, Sean Court.
'Neither were particularly credible or reliable witnesses. Both were argumentative and evasive in answering questions: their mutual antipathy was apparent. Both admitted and displayed that their memories and attentions to detail were imprecise. Their memories of the felling day were also incomplete and hazy,' the judge wrote.
A dearth of evidence was also noted – including the failure of either party to call a key witness and the absence of photographs of the fallen trees. Further, the evidence that was presented was 'murky,' according to the judge.
'The court must, as best as it can, decide this dispute on the limited evidence before it,' the decision said.
The relationship between the neighbours was one plagued by conflict including the installation of no trespassing signs, squabbles over a well, and multiple police complaints. The court heard. In the years leading up to the 2021 incident there were 'only a few interactions' – all of which were hostile.
Court, in his testimony, said he told the tree faller to cut down his neighbour's trees after she explicitly told him he could during a spontaneous conversation in the yard.
Prowal denied giving her neighbour permission and said she was unaware the trees were cut down until weeks later, when she saw the stumps and filed a police report.
Given the strained relationship, the judge found it unlikely things unfolded the way Court said they did.
'It is implausible that Mr. Court would casually call over the wall and propose or request the significant undertaking of felling five trees, in a very brief and sudden conversation,' Crerar wrote.
'Nor is plausible that the plaintiff would casually, promptly and unambiguously provide authorization for the felling of these trees: it is clear that she is not a casual or easygoing person, especially in her dealings with the defendants.'
The judge did, however, allow for the possibility that a boarder on Prowal's property said something to Court that he interpreted as permission to cut the trees down.
The boarder, the decision noted repeatedly, did not testify. But Prowal 'acknowledged' that she sent him to speak with Court and inquire about the price of cutting down trees on the day they were ultimately cut down.
'Objectively viewed, such an inquiry, delivered through an imprecise vessel such as (the boarder), may well have been misinterpreted, and now misremembered by Mr. Court, as consent to fell the trees,' the decision said.
This was not enough to establish consent, but the judge found it mitigated Court's culpability for the trespassing.
Prowal claimed $50,000 in damages for 'loss of enjoyment and amenities' and the cost of replacing the trees, the decision said. She told the court – among other things – that she enjoyed watching wildlife in the trees, used one to hang a clothesline from, and enjoyed the shade the trees provided.
'The fact that the plaintiff did not notice the loss of the trees until two weeks after the event somewhat undermines her testimony as to their importance in her daily life,' the judge wrote.
An expert arborist told the court the maximum cost of replacing the trees would be $25,900. The judge found there was no evidence Prowal had 'any intention' of actually replacing the trees and so reduced the amount by 25 per cent to reflect the 'timber market price' – for total damages of $19,425.
Prowal also sought $50,000 in punitive damages – calculated on the basis of $10,000 per tree. Crerar rejected this, finding a much lower award of $2,000 was warranted on the ground that Court's actions were 'reckless' but that he had not 'flagrantly and deliberately proceeded to have the trees felled.'
Prowal was also awarded $1,500 to reimburse her for the cost of a necessary land survey for a total of $22,925 in damages.