Vanscoy No. 345 (Rural Municipality) v. Hickey, (1995) 126 Sask.R. 118 (QB)

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 11, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 126 Sask.R. 118 (QB)

Vanscoy No. 345 v. Hickey (1995), 126 Sask.R. 118 (QB)

MLB headnote and full text

Rural Municipality of Vanscoy No. 345 (appellant) v. Ernest Hickey (respondent)

(1994 Q.B. No. 2459)

Indexed As: Vanscoy No. 345 (Rural Municipality) v. Hickey

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gerein, J.

January 11, 1995.

Summary:

A property owner sued the Rural Munici­pality of Vanscoy for trespass. The small claims judge allowed the action and awarded the owner $2,003.22 in damages. The mu­nicipality appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal in part and reduced the damage award to $803.22.

Damages - Topic 210

Entitlement - Notice of claim - A munic­ipality moved vehicles, located on private property, behind a fence on the property - The property owner sued the municipality for trespass - The small claims judge allowed the action and awarded the owner, inter alia, $1,200 for alleged damage to the property - The Saskatchewan Court of Queen's Bench set aside the $1,200 award - The court noted that the statement of claim did not claim for damage to the property itself and that no mention of the claim was made until near the end of the plaintiff's examination-in-chief - This did not constitute notice of the claim - See paragraphs 18 to 24.

Torts - Topic 3002

Trespass to land - What constitutes - A municipality moved vehicles, located on private property, behind a fence on the property - The property owner sued the municipality for trespass - The small claims judge allowed the action - The municipality appealed - The Saskatche­wan Court of Queen's Bench held that to establish an actionable wrong the owner had only to prove that the munici­pality entered upon his land without his per­mission - The onus then fell to the mu­nicipality to prove that the entry was law­ful (i.e. authorized by s. 250 of the Mu­nicipality Act) - Here there was no evi­dence upon which the trial judge could conclude that the premises were unsightly.

Cases Noticed:

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 11].

Board of Education of Long Lake School Division No. 30 v. Schatz, Irwin and Saskatchewan Government Insurance (1986), 49 Sask.R. 244 (C.A.), refd to. [para. 11].

McKenna v. Woodstock (Town) (1992), 131 N.B.R.(2d) 330; 333 A.P.R. 330 (T.D.), refd to. [para. 15].

Statutes Noticed:

Rural Municipality Act, S.S. 1989-90, c. R-26.1, sect. 250 [paras. 1 et seq.]; sect. 250(1), sect. 250(3) [para. 14]; sect. 251 [para. 16]; sect. 251(6) [para. 4].

Small Claims Act, S.S. 1988-89, c. S-50.1, sect. 7(1) [para. 21].

Counsel:

C.J. Hearn, for the appellant;

R.M. Gillies, for the respondent.

This case was heard by Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on January 11, 1995.