Cound v. BPM Construction Ltd.,

• Jurisdiction: Nova Scotia
• Judge: Slone
• Neutral Citation: 2008 NSSM 33
• Subject Matter: TORTS
• Citation: 2008 NSSM 33,(2008), 266 N.S.R.(2d) 188 (SmCl),266 NSR(2d) 188,(2008), 266 NSR(2d) 188 (SmCl),266 N.S.R.(2d) 188
• Date: 17 June 2008
• Court: Small Claims Court of Nova Scotia (Canada)

Cound v. BPM Constr. Ltd. (2008), 266 N.S.R.(2d) 188 (SmCl);

    851 A.P.R. 188

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JN.047

Martin Cound and Laura Cound (claimants) v. BPM Construction Limited (defendant)

(Claim No. 295400; 2008 NSSM 33)

Indexed As: Cound v. BPM Construction Ltd.

Nova Scotia Small Claims Court

Slone, Adjudicator

June 23, 2008.

Summary:

The claimants owned a house adjacent to a vacant lot owned by the defendant company. During a wind storm, a tall evergreen tree on the defendant's land snapped and fell on the claimants' property, demolishing a plastic shed. The claimants sued for the value of the shed. The claimants contended that the tree became vulnerable because the defendant had cleared part of the lot. The defendant explained that the trees had been left along the boundary of the property as a necessary buffer zone, as required by the municipality, and that there was no reason to believe that the tree, or any others, posed a danger.

The Nova Scotia Small Claims Court dismissed the action.

Torts - Topic 1417

Nuisance - Injury to property - Neighbouring owners - Trees and crops (incl. roots) - [See Torts - Topic 3586 ].

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - [See Torts - Topic 3586 ].

Torts - Topic 3586

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Trees - The claimants owned a house adjacent to a vacant lot owned by the defendant - During a wind storm, a tall evergreen tree on the defendant's land snapped and fell on the claimants' property, demolishing a plastic shed - The claimants sued for the value of the shed - The claimants contended that the tree became vulnerable because the defendant had cleared part of the lot - The defendant explained that the trees had been left along the boundary of the property as a necessary buffer zone, as required by the municipality, and that there was no reason to believe that the tree, or any others, posed a danger - The Nova Scotia Small Claims Court dismissed the action - In its analysis, the court noted that just as in Doucette v. Parent (1996) (Ont. Gen. Div.), the most recent Canadian authority on point, "there is nothing unusual about the existence of the tree or the use of the land as to attract nuisance or the Rylands principle" - Nor could the claimants succeed in negligence - The court was unable to find that the defendant had any reason to believe that the tree would be unable to withstand heavy wind - There was no evidence that the tree was diseased or damaged, and if it were, that the defendant ought to have known about it - See paragraphs 8 to 15.

Cases Noticed:

Doucette v. Parent (1996), 14 O.T.C. 354; 31 C.C.L.T.(2d) 190 (Gen. Div.), refd to. [para. 8].

Rylands v. Fletcher (1866), L.R. 1 Exch. 265, affd. (1868), L.R. 3 H.L. 330, refd to. [para. 10].

Counsel:

Claimant, self-represented;

Defendants, self-represented.

This action was heard in Halifax, Nova Scotia, on June 17, 2008, before Adjudicator Slone, of the Nova Scotia Small Claims Court, who rendered the following decision on June 23, 2008.