Northern Light Arabians et al. v. Sapergia, (2011) 383 Sask.R. 145 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: September 28, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 383 Sask.R. 145 (PC);2011 SKPC 151

Northern Light Arabians v. Sapergia (2011), 383 Sask.R. 145 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. OC.007

Northern Light Arabians, Theresa I. Hora, Elizabeth M. Hora and James N. Dell v. Robert Sapergia

(2011 No. 10; 2011 SKPC 151)

Indexed As: Northern Light Arabians et al. v. Sapergia

Saskatchewan Provincial Court

Civil Division

Kalmakoff, P.C.J.

September 28, 2011.

Summary:

The border between the plaintiffs' ranch and the defendant's ranch was made up, in part, of a road allowance on land owned by a rural municipality. The plaintiffs' property on the north side of the road allowance was enclosed by a perimeter fence. The defendant refused to erect a fence on his side of the road allowance to stop his horses escaping and entering the plaintiffs' property. The problem had persisted for more than 20 years. The plaintiffs advanced their claim in nuisance, namely, that the defendant's refusal to erect a fence unreasonably interfered with their use and enjoyment of their property by causing distress to them, their horses, and the clients of their business ventures.

The Saskatchewan Provincial Court found the defendant liable in nuisance and awarded damages of $2,500.

Animals - Topic 2624

Animal control - Rights of property owners against trespassing animals (incl. nuisance) - Damages - In this case, the nuisance created by the defendant's refusal to erect a fence so as to stop his horses escaping and entering the plaintiffs' property had persisted for more than 20 years - Not each individual incident had been serious, but the cumulative effect was substantial - The nuisance had not been constant - The Saskatchewan Provincial Court awarded the plaintiffs the sum of $2,500 - That sum struck the appropriate balance - "It must be sufficient to encourage the Defendant to take the reasonable step of fencing his side of the road allowance, yet not be so great as to be oppressive or overcompensate the Plaintiffs." - See paragraph 42.

Animals - Topic 2625

Animal control - Rights of property owners against trespassing animals (incl. nuisance) - Injunctions - The plaintiffs claimed that the defendant's refusal to erect a fence unreasonably interfered with their use and enjoyment of their property by causing distress to them, their horses, and the clients of their business ventures - Their claim in nuisance was successful - They sought damages as well as injunctive relief - The Saskatchewan Provincial Court stated that, while a mandatory injunction requiring the defendant to fence the remaining portion of his pasture would likely be the most effective and appropriate remedy in the circumstances of this case, such an order was beyond the authority of the court - The court added that in actions for nuisance, generally speaking, damages would be granted instead of injunctive relief where injunctive relief would be oppressive to the defendant, or where the plaintiff's injury was adequately compensable in money - See paragraphs 39 and 40.

Damage Awards - Topic 545

Torts - Injury to land and buildings - Nuisance - [See Animals - Topic 2624 ].

Damages - Topic 4213

Torts affecting land and buildings - Normal measure - Nuisance - [See Animals - Topic 2624 ].

Torts - Topic 1002

Nuisance - General principles and definitions - Elements of - [See second Torts - Topic 1004 ].

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - The Saskatchewan Provincial Court stated that "[t]he law of nuisance does not provide a remedy for trifling or small inconveniences, but only for those which sensibly diminish the comfort, enjoyment or value of the property affected. ... Legal intervention is warranted only where the Defendant's excessive use of property causes inconvenience beyond that which other occupiers of property in the vicinity can reasonably be expected to bear. ... In order to be actionable, the interference in question must be intolerable to an ordinary person. ... The invasion or interference complained of must be substantial, serious, and clearly unacceptable according to accepted concepts of the day." - See paragraphs 13 and 14.

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - The Saskatchewan Provincial Court stated that "[d]eliberate, significant, and unjustifiable interference with a neighbour's property (including such actions as harassment, intimidation and invasion of privacy), can amount to nuisance. ... In considering whether the interference with the use and enjoyment of the Plaintiff's property is severe enough to be actionable, the Court must consider the following: ... (1) the severity of the interference, having regard to its nature, duration and effect; (2) the character of the location; (3) the utility of the Defendant's enterprise; and (4) the sensitivity of the Plaintiffs." - See paragraph 15.

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - The plaintiffs' ranch on the north side of a road allowance was enclosed by a perimeter fence - For more than 20 years, the defendant refused to erect a fence on his side of the road allowance to stop his horses entering onto the plaintiffs' property - The plaintiffs' businesses involved riding instruction and assisted-living housing - The Saskatchewan Provincial Court found the defendant liable in nuisance - The use of the land by the defendant amounted to a substantial and unreasonable interference with the plaintiffs' use and enjoyment of their property - The interference was a "long-lasting, moderate intensity annoyance" - The interference had occurred where the defendant's horses would meet the definition of "stray" or "running at large" under the Stray Animals Act, which suggested that the interference was unreasonable - The plaintiffs were particularly sensitive, given their use of their land - The defendant's refusal had little utility - Moreover, he had been aware of the "glaringly obvious solution" to the problem - See paragraphs 17 to 38.

Torts - Topic 1005

Nuisance - General principles and definitions - Nuisance defined - The Saskatchewan Provincial Court stated that "[t]he tort of nuisance consists of a substantial and unreasonable interference with the use and enjoyment of another person's property. ... The Plaintiff in such a case is not required to prove negligence; the substantive requirement of the tort is satisfied upon proof of tangible damage, or a significant degree of discomfort or inconvenience resulting from the Defendant's activity. Once the Plaintiff has established the existence of an actionable nuisance, the onus shifts to the Defendant to establish that the use of the land was reasonable" - See paragraph 12.

Torts - Topic 1010

Nuisance - General principles and definitions - Type of injury or damage required - [See first Torts - Topic 1004 ].

Torts - Topic 1041

Nuisance - Conditions precedent - General - [See first Torts - Topic 1004 ].

Torts - Topic 1715

Nuisance - Practice - Evidence and proof - [See Torts - Topic 1005 ].

Cases Noticed:

Panchuk v. Sadler (2009), 340 Sask.R. 121 (Prov. Ct.), refd to. [para. 9, footnote 1].

Royal Anne Hotel Ltd. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A.), refd to. [para. 12, footnote 2].

Lakeview Gardens Ltd. v. Regina (City) (2004), 254 Sask.R. 212; 336 W.A.C. 212; 2004 SKCA 110, refd to. [para. 12, footnote 2].

Strand Theatre Ltd. v. Prince Albert (City) (2011), 374 Sask.R. 275; 2011 SKQB 209, refd to. [para. 12, footnote 2].

Banfai et al. v. Formula Fun Centre Inc. et al. (1984), 51 O.R.(2d) 361 (H.C.), refd to. [para. 13, footnote 4].

O'Regan and O'Regan v. Bresson, O'Regan and O'Regan (1977), 23 N.S.R.(2d) 587; 32 A.P.R. 587; 3 C.C.L.T. 214 (Co. Ct.), refd to. [para. 14, footnote 5].

Barrette et al. v. St. Lawrence Cement Inc. et al., [2008] 3 S.C.R. 392; 382 N.R. 105; 2008 SCC 64, refd to. [para. 14, footnote 6].

Suzuki v. Monroe, [2009] B.C.T.C. Uned. 1403; 2009 BCSC 1403, refd to. [para. 14, footnote 7].

Saelman et al. v. Hill, [2004] O.T.C. 440; 2004 CanLII 9176 (Sup. Ct.), refd to. [para. 15, footnote 8].

Windrem v. Couture et al. (2009), 341 Sask.R. 131; 2009 SKQB 339, refd to. [para. 15, footnote 8].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 16, footnote 9].

MacGregor v. Penner et al., [1993] 1 W.W.R. 245; 82 Man.R.(2d) 178 (Q.B.), refd to. [para. 32, footnote 10].

Pugliese et al. v. National Capital Commission et al. (1978), 17 O.R.(2d) 129; 3 C.C.L.T. 18; 79 D.L.R.(3d) 592 (C.A.) varied [1979] 2 S.C.R. 104; 25 N.R. 498, refd to. [para. 33, footnote 11].

Olah v. Cadillac Fairview Corp., [1990] S.J. No. 344 (Q.B.), refd to. [para. 41, footnote 14].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 467 [para. 33, footnote 11].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (9th Ed. 2011), pp. 579 [para. 12, footnote 3]; 607, fn. 3 [para. 40, footnote 12].

Counsel:

Daniel Killick, for the plaintiff;

David Chow, for the defendant.

This action was heard at Moose Jaw, Saskatchewan, before Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment, with reasons, dated September 28, 2011.