Saelman v. Hill
Between Jacques Saelman and William Wuerch, plaintiffs, and Dennis Wayne Hill and Sylvia Ann Hill, defendants  O.J. No. 2122  O.T.C. 440 20 R.P.R. (4th) 118 2004 CanLII 9176 131 A.C.W.S. (3d) 367 Court File No. 13526/00
Ontario Superior Court of Justice Kingston, Ontario Hackland J. Heard: April 5-8 and 13-16, 2004. Judgment: May 20, 2004. (47 paras.) Damages -- For torts -- Affecting property -- Real property -- Nuisance -- Inconvenience -Psychological injuries -- Emotional distress -- Tort law -- Nuisance -- Injury to person. Action by Saelman and Wuerch against their neighbours, the Hills, for nuisance resulting from harassment following a property dispute. There were disagreements over the Hills' hedge-cutting and snow clearing which affected the Saelman property. Unpleasant comments were exchanged and the police were called on several occasions. The Hills modified their downspout such that the water flowed directly onto the Saelman driveway. Saelman did some elevated landscaping in his backyard that caused the Hills concern that they would encounter a drainage problem. By-law inspectors
called by Hill did not feel the situation merited any action. Saelman erected a six-foot wooden privacy fence. The Hills then dug trenches. One directed water toward the Saelman garage and another was dug alongside the fence and filled with water in an attempt to destabilize it. The Hills also installed a spotlight that was directed toward the Saelman house and a surveillance camera directed at the property line. They played music loudly and installed no-trespassing signs. Saelman had installed large mirrors on his house to watch the property line. There were a couple of incidents whereby Mrs. Hill hit feet and legs of people on the Saelman property while using garden tools under the fence. Shortly after commencing this action, Saelman obtained injunctive relief restraining the Hills from trespassing and requiring them to alter their downspouts. The dispute went to mediation where it was ordered that the Hills should not trespass, dig trenches or touch the privacy fence. The Hills were to fill the trenches and turn the video camera away from the Saelman property. A dusk-to-dawn sensor was to be installed on the security light and the no-trespassing signs were to be removed. In further mediation other limitations were placed relating to walking in front of the Saelman property. Saelman was allowed to erect more fencing in his front yard between the two properties. Despite this mediation, the fighting continued. The Hills dug more trenches, Saelman constructed a trellis five feet above the wooden fence, and there were more unpleasant exchanges regarding snow shoveling. HELD: Action allowed. The tort of nuisance included instances where a neighbour deliberately, significantly and unjustifiably interfered with a neighbour's enjoyment of his property. Wuerch, though not an owner of the property, was also protected by the law of nuisance by virtue of his lawful occupation of a residential property. Though most of the actions by the Hills were minor and not individually actionable, taken as a whole, they constituted a campaign of harassment amounting to actionable nuisance. Damages were awarded to Wuerch and Saelman for interference with the enjoyment of their home, increased pain and mental distress. Saelman also received damages for the cost of the wooden fence and depression medication. A permanent injunction was ordered in essentially the same form as the injunction that resulted from the mediation. Counsel: John A. Ryder-Burbidge, for the plaintiffs. Dennis Wayne Hill and Sylvia Ann Hill, on their own behalf.
REASONS FOR JUDGMENT HACKLAND J:-Introduction:
1 This action involves a property dispute between neighbours in the City of Kingston which began in the spring of 1998 and continues to date. Several minor disagreements lead to a complete breakdown in...