Ardavicius v. Kairys et al., (2009) 251 O.A.C. 114 (DC)

• Judge: J. Wilson, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 20, 2009
• Jurisdiction: Ontario
• Citations: (2009), 251 O.A.C. 114 (DC)

Ardavicius v. Kairys (2009), 251 O.A.C. 114 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.109

Nijole Ardavicius (plaintiff/respondent) v. Mary Kairys and Julius Kairys (defendants/appellants) and Ivan Grbavac (third party/respondent)

(14/07)

Indexed As: Ardavicius v. Kairys et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, J.

June 8, 2009.

Summary:

The plaintiff sued her neighbours (the defendants) for the cost of building a retaining wall between the properties. The defendants counterclaimed, including a claim for malicious prosecution after a charge of mischief was laid against them, but not pursued by the Crown.

The Ontario Small Claims Court allowed the action and awarded judgment to the plaintiff of $6,300 plus interests and costs. The court dismissed the counterclaim. The defendants appealed.

The Ontario Divisional Court, per J. Wilson, J., dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - A dispute arose between neighbours because the plaintiff refused to help pay for a new fence - The defendants erected a privacy fence, causing changes to the lateral support to the plaintiff's property - These changes required a substantial retaining wall to be built by the plaintiff at a cost of $6,300 - The disagreement about the fences and the subsidence of the plaintiff's land became so acrimonious that it resulted in instances of threats and vandalism, causing the police to be called on several occasions - The plaintiff sued for the cost of building the retaining wall - The defendants counterclaimed, including a claim for malicious prosecution after a charge of mischief was laid against them, but not pursued by the Crown - The Small Claims Court awarded judgment to the plaintiff of $6,300 plus interests and costs - The court dismissed the counterclaim - The defendants appealed, arguing that the reasons for judgment did not make it clear why the credibility findings were made against them and suggested that the reasons were not sufficient - The Ontario Divisional Court, per J. Wilson, J., dismissed the appeal - The reasons were clear - The trial judge was discreet but clear in his finding of credibility - His findings were fully supported by the evidence - See paragraphs 10 and 11.

Torts - Topic 1420

Nuisance - Injury to property - Neighbouring owners - Loss of support for soil - A dispute arose between neighbours because the plaintiff refused to help pay for a new fence - The defendants erected a privacy fence, causing changes to the lateral support to the plaintiff's property - These changes required a substantial retaining wall to be built by the plaintiffs at a cost of $6,300 - The disagreement about the fences and the subsidence of the plaintiff's land became so acrimonious that it resulted in instances of threats and vandalism, causing the police to be called on several occasions - The plaintiff sued for the cost of building the retaining wall - The Small Claims Court awarded judgment to the plaintiff of $6,300 - The defendants appealed, asserting that recovery for loss of support was barred where the plaintiff's land was not in its natural state - The Ontario Divisional Court, per J. Wilson, J., dismissed the appeal - Firstly, if the defendants wished to make this argument, they should have done so before the trial judge - The cases referred to by the defendants involved situations where the nature of the land, and whether it was in a natural state, was a clear issue in the trial - Secondly, there was sufficient evidence to find that the plaintiff's land was in its natural state - The plaintiff testified that her property was as she had purchased it in 1986 - See paragraphs 15 to 22.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - A dispute arose between neighbours because the plaintiff refused to help pay for a new fence - The defendants erected a privacy fence, causing changes to the lateral support to the plaintiff's property - These changes required a substantial retaining wall to be built by the plaintiff at a cost of $6,300 - The disagreement about the fences and the subsidence of the plaintiff's land became so acrimonious that it resulted in instances of threats and vandalism, causing the police to be called on several occasions - The plaintiff sued for the cost of building the retaining wall - The defendants counterclaimed, including a claim for malicious prosecution after a charge of mischief was laid against them, but not pursued by the Crown - The Small Claims Court awarded judgment to the plaintiff of $6,300 plus interests and costs - The court dismissed the counterclaim - The defendants appealed, asserting that the trial judge erred by applying a subjective test, rather than a subjective-objective test, in determining whether the plaintiff had reasonable and probable cause to believe that the defendants had committed the mischief alleged - The Ontario Divisional Court, per J. Wilson, J., dismissed the application - The trial judge concluded that the plaintiff "honestly and reasonably believed" the defendants were guilty - From the language of the reasons and the evidence he considered, it was clear that the trial judge applied a subjective-objective test and found sufficient evidence to support the reasonableness of the plaintiff's belief - See paragraphs 12 and 13.

Cases Noticed:

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 11].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 12].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 14].

Mascioli v. Betteridge Smith Construction Co., [1965] 1 O.R. 627 (H.C.), refd to. [para. 20].

Boyd v. Toronto (City) (1911), 23 O.L.R. 421 (H.C.), refd to. [para. 20].

Hunt v. Peake (1860), 70 E.R. 603 (Q.B.), refd to. [para. 20].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (2008 Looseleaf), § 17.20.40(a) [para. 20].

Counsel:

Nijole Ardavicius, in person;

Joseph Markin, for the defendant/appellant, Julius Kairys;

Ian Grbavac, in person.

This appeal was heard on April 20, 2009, at Toronto, Ontario, by J. Wilson, J., of the Ontario Divisional Court, who delivered the following decision on June 8, 2009.