Poysor v Cowan, 2021 ONSC 7474

In May 2021, Ayren Brown of our office was one of the first lawyers to try a case in London during the COVID-19 pandemic. In addition to effectively navigating a virtual trial, Mr. Brown succeeded in substantially reducing the Plaintiff’s claim for damages against his defence client.

Poysor v Cowan involved the removal of trees near the property line separating 2 properties in Mount Brydges, Ontario. The Plaintiff resided on a rural property on Irish Drive, which consisted of approximately 50 acres of woodlot. Meanwhile, the Defendant, Chimo Farms Limited (“Chimo Farms”), owned adjacent farm property, located on Longwoods Road.

In 2016, Chimo Farms retained the Defendant, R&S Graham Contracting Ltd., to clear trees and brush that had been encroaching onto its property from the Plaintiff’s woodlot. Prior to commencing the work, the Defendants located a fence that appeared to run along the property lines established by several county markers. To ensure that it did not cross the property lines, R&S Graham tied orange flags and tape to nearby trees. R&S Graham subsequently used an excavator to clear trees and brush near the property line. Once out of the ground, R&S Graham used an excavator to push the vegetation into burn piles.

In 2017, the Plaintiff retained AGM to conduct a site survey and mark the property lines. AGM representatives placed wooden stakes with red paint at approximately 100 foot intervals along the boundary. The Plaintiff also placed metal T-bars at each AGM stake location to more permanently delineate the property lines. The Plaintiff then took photographs to demonstrate that the Defendants had encroached onto his property.

The parties agreed that the fence the Defendants used to determine the boundaries did not completely follow the property line. They further agreed that, in some locations, the fence actually ran inside the Plaintiff’s property lines.

At trial, the Plaintiff alleged that the Defendants removed and damaged trees on his property. He further claimed the Defendants had destroyed his fence with R&S Graham’s excavator. In addition to damages for loss of amenity, the Plaintiff sought the following:

• Fence replacement: $8,048
• Tree replacement: $186,450
• Cost of AGM survey: $949
• Cost of T-Bars: $239

The Defendants conceded that they unintentionally encroached onto the Plaintiff’s property; however, they took issue with the extent of that encroachment as well as the Plaintiff’s resulting damages.

Justice George awarded the Plaintiff the following:

• Fence replacement: $4,024
• Tree replacement: $12,087.45
• Cost of AGM survey: $949
• Cost of T-Bars: $239
• Loss of amenity: $7,500

Justice George awarded only half of the amount claimed to repair the Plaintiff’s fence as the evidence established it was very old at the time of the incident. Regarding the encroachment issue, His Honour was unable to determine with any precision how far the Defendants intruded onto the property. He found, however, that any intrusion was minimal. Relying on case law presented by the Defendants, His Honour held that the damages for restoration ought to be reasonable, and not amount to retribution.

Accordingly, he refused to award $186,450 claimed by the Plaintiff, and instead awarded the more modest sum of $12,087.45. Similarly, Justice George only awarded a minimal sum for loss of amenity. His Honour accepted the Defendants’ argument that the sentimental value of the Plaintiff’s land was irrelevant, and that damages ought to be modest where the trespass has not affected the Plaintiff’s actual enjoyment of the property.