



COURT OF APPEAL FOR ONTARIO

CITATION: Murphy v. Mullen, 2021 ONCA 872

DATE: 20211209

DOCKET: C68513

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Judith Ann Murphy and Jason
    Andrew Murphy

Plaintiffs (Respondents)

and

Timothy Mullen and T.S. Mullen
    Farms Ltd.

Defendants (Appellants)

Larry M. Najjar, for the appellants

Nour Jomaa, for the respondents

Heard: September 20, 2021 by video conference

On appeal from the judgment of Justice Pamela
    L. Hebner of the Superior Court of Justice, dated February 26, 2020, with
    reasons at 2020 ONSC 1261.

Hoy J.A.:


A.

Introduction

[1]

The trial judge granted summary judgment in favour of Judith Ann Murphy
[1]
,
    holding that the appellants, Timothy Mullen and T.S. Mullen Farms Ltd.,
    trespassed on the Murphy property. The trial judge also scheduled a hearing on
    the issue of damages. Following that hearing, the trial judge ordered the
    appellants to pay Ms. Murphy $213,471.27 as damages for trespass.

[2]

The appellants do not contest liability but do challenge the quantum of
    damages ordered on multiple bases.

[3]

This court is not entitled to interfere with the trial judges damages
    award unless it is shown that she erred in law, she misapprehended the
    evidence, there was no evidence on which she could have reached her conclusion,
    she failed to consider relevant factors in the assessment of damages or
    considered irrelevant factors, or she otherwise, in the result, made a palpably
    incorrect or wholly erroneous assessment of damages:
Naylor Group Inc. v.
    Ellis-Don Construction Ltd.
, 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80;
Michel v. Spirit Financial Inc.
, 2020 ONCA 398, 151 O.R. (3d) 583.

[4]

I am not persuaded that there is any basis for this court to interfere
    with the trial judges damages award, and so I would dismiss this appeal.

[5]

Below, I first provide some background as to the facts and the trial
    judges damages assessment. Then I outline and address what I would
    characterize as the essentially 12 arguments the appellants raise on appeal,
    which I organize in my discussion into four categories: (1) foreseeability-related
    arguments; (2) other arguments related to Ms. Murphys intention to build a
    house on her property and her affinity for trees; (3) drainage-related arguments;
    and (4) other arguments.

B.

BACKGROUND

Facts

[6]

Mr. Mullen owns T.S. Mullen Farms Ltd. It in turn owns the farm property
    adjacent, to the west, to Ms. Murphys 40-acre property.

[7]

Prior to the trespass, both the Mullen property and the Murphy property
    were used as farmland. They were separated by a drainage ditch and a column of
    mature trees. The line of trees was approximately 2,000 feet long and 60 feet deep.
    The drainage ditch was on the Murphy property.

[8]

Mr. Mullen entered the Murphy property and cut and removed the trees.
    After removing the tree line, he filled in the drainage ditch beside it. He
    would later argue that Ms. Murphy had given him permission to do so. Ms. Murphy
    acknowledged that probably one half of the trees removed were on the Mullen
    property.

[9]

The Mullen property did not have proper drainage. It had no direct
    outlet to two existing municipal drains. Mr. Mullen took the action he did to
    improve drainage on the Mullen property and make it a viable farming operation.
    After it was apparent that Ms. Murphy did not agree with his actions, he petitioned
    the town for a municipal drain to address the drainage issues on the Mullen
    property. The municipality eventually constructed a drain. The costs were
    assessed to both properties under the
Drainage Act
, R.S.O. 1990, c. D.17.
    Of the total cost of $102,000, $77,032 was assessed to the Mullen property, and
    $24,968 to the Murphy property.

Trial Judges Reasons

[10]

On
    the appellants summary judgment motion, the trial judge found that Mr. Mullen
    had not discharged his burden of proving he had leave and licence to do any
    work on Ms. Murphys property. Accordingly, she found the appellants liable for
    trespass on the Murphy property.

[11]

There
    was a separate four-day hearing on the issue of damages, which gave rise to this
    appeal.

[12]

At
    the time of the hearing, Ms. Murphy lived in the United States. The Murphy
    property had been in the Murphy family for generations. There had been no house
    on the Murphy property since the 1870s.
[2]
Nevertheless, the trial judge accepted that Ms. Murphy intended to build a
    house on the southwest corner of the property close to the tree line, and
    retire there. As I will discuss below, several of the appellants arguments
    arise out of the trial judges acceptance of Ms. Murphys evidence that she
    intended to build a house on the Murphy property.

[13]

The
    trial judge also found that the trees were important to Ms. Murphy. Her
    evidence was that she had planted over 100 trees on her property in Richmond,
    Michigan. The tree line on the Murphy property had provided a sound and light
    barrier from the residential subdivision and the fairgrounds located to the
    west of the Mullen property. It was a habitat for wildlife and provided a wind
    break and a visual screen between the Murphy and the Mullen properties.

[14]

The
    trial judge carefully reviewed the law on the issue of damages for loss of
    trees.

[15]

She
    observed that the determination of compensation for loss of trees is a highly
    fact-dependent exercise and may vary depending on a number of factors:

Generally, the court will try to place the
    plaintiff in the same position as they were before the trespass was committed
    as far as having privacy restored or aesthetic beauty replaced, but not
    necessarily the replacement of the exact tree lost. If replacement is possible
    but not practicable, the court will look at what is reasonable in the
    circumstances.

[16]

The
    trial judge noted that the appellants submitted that the court had three
    options on which to base its award: (1) the value of the trees; (2) the decrease
    in valuation of the land resulting from the cut trees; or (3) the cost of
    reasonable restoration.

[17]

There
    was no evidence as to either the value of the trees or the decrease in value of
    the land. In any event the trial judge concluded that the appropriate approach
    to damages was that taken in
Kates v. Hall
, 1991 CanLII 1127
    (B.C.C.A.), affg [1989] B.C.J. No. 1358 (S.C.), namely the amount sufficient
    to pay for the remedial work which a reasonable person without monetary
    constraints in the plaintiffs position would have implemented had the loss been
    caused without fault on anyones part:
Kates
, at p. 6.

[18]

The
    trial judge rejected the appellants argument that the trees would have had to
    be removed in any event given the subsequent placement of an open drain on the
    property line between the Mullen and Murphy properties and, accordingly, they
    should not be responsible for the cost of replacing the trees. She reasoned
    that had the tree line and ditch remained in place, Ms. Murphy likely would
    have opposed their removal to accommodate a municipal drain. The municipality
    could have placed the drain in a different location or considered different
    drainage options. Therefore, it was not at all certain that trees would have
    had to be removed.

[19]

The
    trial judge found that the value of the trees was in their placement. She
    concluded that a reasonable person in Ms. Murphys position would arrange for
    the planting of trees along the property line for the portion (200 metres) of
    the full 610-metre length of the former tree line near where Ms. Murphy planned
    to build a house, and not along the north end of the property intended to be
    used for farmland.

[20]

The
    trial judge accepted the evidence of Ms. Murphys son that, when he had walked
    the tree line, he had counted 300 trees. The tree line included trees that were
    40 to 60 feet tall.

[21]

The
    trial judge concluded that it was reasonable to use 40 to 50 mm caliper trees that
    were approximately 8 to 10 feet tall as replacement trees. Based on the expert
    evidence of the arborist called by Ms. Murphy, she found that the approximate
    cost of replacing one third of the tree line was $73,902. She accepted the
    experts evidence that irrigation and a fence to protect the new trees from the
    deer would be necessary and assessed $20,000 for irrigation and $13,000 for
    fencing.

[22]

The
    trial judge found that the ditch Mr. Mullen had filled in had provided
    sufficient drainage for the Murphy property. Accordingly, she added the cost of
    the survey Ms. Murphy had to obtain for the purpose of the new drain
    constructed by the municipality, and the
Drainage Act
costs of $24,968
    assessed against the Murphy property.

[23]

Finally,
    the trial judge added the sum of $75,000 for loss of amenities. This amount
    recognized that Ms. Murphy would be waiting at least 20 years before she had
    mature trees at the place where she plans to build her house and that she would
    most likely never have trees along the entire length of the property line as
    she did before. As I will outline below, the trial judge explained how she
    determined that, in the circumstances, $75,000 was the appropriate amount.

[24]

The
    trial judge declined to make an order for punitive damages.

C.

DISCUSSION

(1)

Foreseeability-related arguments

[25]

As
    noted above, the trial judge accepted Ms. Murphys evidence that she intended
    to build a house on the southwest corner of the Murphy property close to where
    the tree line had been. She also concluded that a reasonable person in Ms. Murphys
    position would replace a portion of the tree line that Mr. Mullen removed.

[26]

The
    appellants argue that, unless waived, the concept of foreseeability applies to
    the quantification of damages for the tort of trespass and that the trial judge
    failed to apply this concept. While they conceded in their oral submissions
    that it was foreseeable that somebody, at some time, might build a house on the
    Murphy property, they argue that it was not foreseeable that the person building
    the house would have an affinity for trees and would use land that could
    otherwise be used for farming to plant replacement trees.

[27]

The
    appellants also argue that, in a trespass case, it is assumed that the
    plaintiff would have used her land in the usual way such land was used
at the time of the trespass
. The appellants say
    deviation from this principle is justified only where objective evidence
    establishes that a change in land use was imminent at the time of the trespass
    or, at a minimum, was a realistic and likely outcome of a process already
    underway. The Murphy property was used for farmland and construction of a house
    was not imminent. In fact, Ms. Murphy had taken no concrete steps towards
    constructing a house. Accordingly, it should have been assumed that Ms. Murphy
    would not build a house, or, if she did, would not use land that could
    otherwise be used to plant crops to plant replacement trees. Paul Lantin, the
    tenant farmer who had farmed the Murphy property for many years, testified that
    about 20 feet of grain was lost because of the trees.

[28]

I
    reject these two arguments. Because my discussion of these two arguments
    overlaps, I will address them together.

[29]

As
    I will explain, even accepting for the purpose of argument that the concept of
    foreseeability is generally relevant in assessing damages for the tort of
    trespass to land involving the removal of trees, in this case there is no merit
    to the appellants foreseeability argument. Moreover, the trial judge was not
    required to assume that Ms. Murphy would use her land in the way it was used
at the time of the trespass
.

[30]

The
    appellants rely on a decision of the Saskatchewan Court of Appeal 
Wood
    Mountain Lakota First Nation No. 160 v. Goodtrack
, 2020 SKCA 10, at paras.
    24-26, leave to appeal refused, [2020] S.C.C.A. No. 345
[3]
 in support of their foreseeability argument. Notably, they do not point to
    any decisions of this court or any decisions from the Supreme Court of Canada.

[31]

Wood
    Mountain
is not a trespass case involving the removal of trees. It relies
    on a passage from G.H.L. Fridman,
The Law of Torts in Canada
, 3rd ed.
    (Toronto: Thomson Reuters, 2010), at pp. 57-59:

Foreseeable loss is recoverable, and for this
    purpose it is assumed that the plaintiff would have used his land in the usual
    way such land is used.

In a footnote to this sentence, Professor Fridman
    cites three cases:
De Wurstemberger v. Royalite Oil Co.
, [1935] 2
    D.L.R. 177 (Alta. S.C. (A.D.));
Buckingham v. Graham
(1996), 174
    N.B.R. (2d) 330 (Q.B.); and
Shewish v. MacMillan Bloedel Ltd.
(1990),
    48 B.C.L.R. (2d) 290 (C.A.).

[32]

From
    my review of the cases cited by Professor Fridman, the quoted passage derives
    from
De Wurstemberger
, which in turn cites another Alberta case,
Marsan
    v. G. T. P. Ry. Co.
(1912), 4 Alta. L.R. 167 (S.C. (A.D.)). Neither case
    involves quantification of damages in trespass cases for the removal of trees.
    These cases stand for the proposition that, generally, a trespasser is liable
    for damages that the trespasser could fairly be expected to anticipate from their
    act, and that a trespasser can always be fairly expected to anticipate that the
    plaintiff intends to use her property in
any
reasonable
    and usual way (emphasis added). These cases do not stand for the proposition
    that in assessing damages it must be assumed that the plaintiff will use her
    land in the usual way it was used at the time of trespass. The proposition
    arises in the context of a foreseeability analysis and the cases cast the
    foreseeability net more widely.

[33]

In
    support of their argument that it must be assumed in assessing damages that the
    plaintiff would have used her land in the usual way such land was used at the
    time of trespass, the appellants cite two trespass cases:
G.T. v. D.
    Saunders
, 2014 ONSC 4422, at para. 75, and
Costello v. Calgary (City)
(1995),
    163 A.R. 241 (Q.B.), at para. 54, revd in part, 1997 ABCA 281, 152 D.L.R.
    (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566.

[34]

Saunders
is a case where the damages awarded included damages for the removal of trees.
    It, in turn, refers to the passage in
The Law of Torts
quoted above.
    As I explain above, in the context of the cases on which Professor Fridman
    relies, the above-quoted passage does not stand for the proposition that it
    must be assumed that the trespasser will use her land in the way it was used at
    the time of trespass. Moreover, the above-quoted passage was not material to
    the analysis in
Saunders
. Pierce R.S.J. concluded that the modest
    amount of damages sought by the plaintiff to replace the trees removed was
    reasonable in the circumstances: the damage was located in a far corner of the
    plaintiffs property and was not immediately visible from their residence.

[35]

Costello
did not involve the removal of trees; it involved a trespass flowing from an
    expropriation subsequently declared void. In determining damages for the
    owners temporary loss of use of the property, the trial judge cited
Marsan
.
    In
Marsan
, the Alberta Supreme Court (Appellate Division) wrote that
    [a] trespasser must be held to know that the owner of the land will try to use
    it in any usual and reasonable way which would be profitable to him (at p.
    173). In
Costello
, the court accepted that the plaintiff would have proceeded
    to develop a new motel on the expropriated site and awarded damages for loss of
    operating revenue from the operation of the proposed larger motel.
Costello
does not stand for the proposition that it must be assumed that the trespasser
    will use her land in the way it was used at the time of trespass.

[36]

Therefore,
    none of the appellants authorities establish that the trial judge was under an
    obligation to assume that Ms. Murphy would only use her land for farmland.
    That being so, it is unnecessary to consider in what circumstances a trial
    judge may deviate from that assumption.

[37]

As
    to the application of foreseeability in general, it is not clear to what extent
    the limiting principle of foreseeability is applicable to intentional torts,
    such as trespass to land, in Ontario.

[38]

As
    noted above, the appellants rely on a decision of the Saskatchewan Court of
    Appeal in support of their foreseeability argument.

[39]

In
    response, Ms. Murphy points to an Ontario decision, albeit a decision of a
    lower court, in support of the argument that foreseeability is not applicable to
    intentional torts:
Allan v. New Mount Sinai Hospital
(1980), 28 O.R.
    (2d) 356 (H.C.J.), revd (1981), 33 O.R. (2d) 603 (C.A.)
[4]
,
    citing
Bettel v. Yim
(1978), 20 O.R. (2d) 617 (Co. Ct.),
per
Borins
    J. In
Allan
, Linden J. commented, at p. 365, that [t]he limitation
    devices of foresight and remoteness are not applicable to intentional torts, as
    they are in negligence law.

[40]

Bettel
    v. Yim
[5]

was also cited by the Supreme Court in
Non-Marine Underwriters,
    Lloyds of London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551, at para.
    99, where Iacobucci J. noted that if a tort is intended, it will not matter
    that the result was more harmful than the actor should, or even could have
    foreseen. This comment was made in the context of a discussion about the
    elements of the tort of sexual battery.
[6]

[41]

In
Murano v. Bank of Montreal
(1998)
,
    163 D.L.R. (4th) 21 (Ont. C.A.), this court also commented on foreseeability in
    the intentional tort context. Morden A.C.J.O. noted that [g]enerally, a
    trespasser can be liable for unforeseen consequences. While he did not
    suggest that there can be no limit on the damages recoverable as a result of an
    intentional tort, in the case before him (which dealt with the torts of
    trespass and conversion) it was unnecessary to explore the possible limits.

[42]

Here
    too it is unnecessary for this court to resolve the application of the concept
    of foreseeability in assessing damages for the tort of trespass to land
    involving the removal of trees.

[43]

The
    remoteness inquiry asks whether the harm [is] too unrelated to the wrongful
    conduct to hold the defendant fairly liable:
Mustapha v. Culligan of Canada
    Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12, citing Allen M.
    Linden & Bruce Feldthusen,
Canadian Tort Law,
8th ed.
    (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 360. Remoteness is
    assessed through the lens of reasonable foreseeability.

[44]

Here,
    there is no issue about the foreseeability of the type of harm: the loss of the
    trees. Mr. Mullen intentionally cut down the tree line.

[45]

In
    their oral submissions, the appellants contended, however, that even though it
    was foreseeable that someone might build a house on the property, it was not
    foreseeable that such a person would have an unusual affinity for trees or
    would plant trees on land that could be used for agricultural purposes.

[46]

This
    is not an issue of failing to apply the concept of foreseeability. Rather, the
    appellants seek to impugn the trial judges finding, in applying
Kates
,
    as to what a reasonable person in Ms. Murphys position, without monetary
    constraints, would pay to restore the property had the loss been caused without
    fault on anyones part.

[47]

In
    a footnote to the paragraph in
The Law of Torts
containing the passage
    that is central to the appellants first argument, Professor Fridman writes
    that quantification of damages in trespass cases involving trees has caused
    courts much difficulty and has resulted in many different ways of dealing with
    the issue. He lists the approach in
Kates
as one of these ways.

[48]

The
    appellants conceded that the approach in
Kates
was one of the possible
    methods of assessing damages, although they argued before the trial judge that
    a different method should be used. The trial judge chose to apply
Kates
.
    The framework in
Kates
takes into account the reasonableness of the
    plaintiffs wish to restore the property to its former state, the actual
    benefit to the plaintiff of the restoration work, and the use to which the
    injured party
has and
will
    put
the property:
Kates
at p. 15.

[49]

The
    trial judge assessed damages from the perspective of a reasonable person in Ms.
    Murphys position  i.e., the position of someone who wanted to build a house
    on the property, which the appellants conceded was foreseeable. The trial judge
    found that a reasonable person in Ms. Murphys position would wish to replace
    the privacy and the sound screen of the tree line along the property adjacent
    to the proposed building area for the home, plus an additional length. The
    trial judge took into account the fact that any replacement trees would occupy
    land that could be used for agriculture. Accordingly, she did not accept that a
    reasonable person would extend the trees for the entire length of the former tree
    line given that the north end of the property was intended to be used for
    farmland. Arguably, in considering what a reasonable person in the plaintiffs
    position would do, the approach in
Kates
assesses remoteness. It is
    difficult to imagine that the actions of a reasonable person would not be
    reasonably foreseeable.

[50]

In
    these circumstances, there is no merit to the appellants foreseeability
    argument or their argument that the trial judge was required to assume that the
    plaintiff would use her land in the usual way it was used at the time of
    trespass.

(2)

Other arguments related to Ms. Murphys
    intention to build a house on her property and her affinity for trees

[51]

The
    appellants make three further arguments related to Ms. Murphys intention to
    build a house and her affinity for trees. For the following reasons, none of
    them persuade me that this court should interfere with the trial judges assessment
    of damages.

[52]

First,
    the appellants argue that, as plaintiff, Ms. Murphy had the onus of providing
    the court with cogent evidence on which to assess damages. Her assertion that
    she intended to build a house on the Murphy property was not supported by any
    objective evidence of her intent or evidence that she would actually follow
    through on that intent. In accepting Ms. Murphys evidence, without
    corroboration, and without evidence that her intent was objectively reasonable,
    the trial judge misapplied the burden of proof. Had the trial judge not
    accepted that Ms. Murphy intended to build a house, she would not have
    awarded the cost of replacing one third of the tree line.

[53]

I
    reject this argument. In her reasons, the trial judge recognized that Ms. Murphy
    bore the onus of establishing the damages arising from the appellants
    trespass. Although Ms. Murphy admitted in cross-examination that she had not
    applied for a building permit, hired an architect, or taken steps to obtain
    Canadian residency status at the time of the trespass, the trial judge was entitled
    to rely on Ms. Murphys evidence that she intended to build a house on the
    Murphy property. The trial judge did not reverse the onus of proof. Further, it
    is implicit from the trial judges reasons as a whole that she accepted that
    Ms. Murphy would probably act on her stated intention.

[54]

Second,
    the appellants submit that the trial judge erred in her application of the test
    in
Kates
. An objectively reasonable person in Ms. Murphys position,
    without monetary constraints, would not spend the money to plant trees along
    200 metres of the property line. The trial judge erred by applying a subjective
    standard and infusing the reasonable person with Ms. Murphys alleged affinity
    for trees.

[55]

I
    reject this argument. As I have already stated, the trial judges conclusion
    that a reasonable person would replace 200 metres of the tree line was grounded
    in multiple factors. These included the privacy, the natural habitat, and the
    screen against noise and light that the trees provided. It was open to the
    trial judge to conclude that a reasonable person who intended to build a house
    would value these elements and want them restored, to a reasonable degree.

[56]

Finally,
    the appellants submit that the trial judge should have discounted the damages
    award to reflect the low probability that Ms. Murphy would actually build a
    house. I am not persuaded that the trial judge was of the view that the
    probability was low. As indicated above, in my view it is implicit from the
    trial judges reasons as a whole that she accepted that Ms. Murphy would
    probably act on her intention to build a house on the Murphy property. In any
    event what matters is not whether the house will ultimately be built but rather
    what remedial work Ms. Murphy would reasonably undertake.

(3)

Drainage-related arguments

[57]

The
    appellants make three drainage-related arguments. The first two are related.

[58]

Their
    first argument is that the trial judge engaged in judicial speculation when she
    rejected their argument that the trees would have had to have been removed in
    any event, given the subsequent placement of the municipal drains. They say
    there was no evidentiary support for her conclusion. The impugned passage is
    the following:

If the hedge row and ditch had remained in place, [Ms. Murphy]
    would most likely have opposed their removal to accommodate a municipal drain.
    The drain could possibly have been placed in a different location, or different
    drainage options could have been considered and/or implemented. It is not
    certain at all that the trees would have had to be removed to accommodate the
    drain.

[59]

The
    appellants second, and alternative, argument was made only in their factum and
    not pursued in oral argument. In their factum they assert that the trial judge
    should at least have reduced the damages awarded to account for what they say
    is the high probability that the trees would, in any event, have had to have
    been removed. For this proposition, without elaboration, they cite a personal
    injury case:
Schrump v. Koot
(1977), 18 O.R. (2d) 337 (C.A.).

[60]

The
    respondents counter with
Dykhuizen v. Saanich (District)
(1989), 63
    D.L.R. (4th) 211 (B.C.C.A.). In that case, Taylor J.A. relied on
Carr-Harris
    v. Schacter and Seaton
, [1956] O.R. 994 (H.C.J.), and
Livingstone v.
    The Rawyards Coal Company
(1880), 5 App. Cas. 25,
per
Lord
    Blackburn, for the proposition that a wilful trespasser is not entitled to say
    that the damage he did would probably have eventually occurred in any event:
Dykhuizen
,

at p. 213.

[61]

Addressing
    the appellants second argument first,
Schrump
and its progeny address
    the approach to the calculation of damages for a future, uncertain loss. In
    contrast, the loss of the trees was a past, certain loss and the appellants
    agreed that it was open to the trial judge to apply the approach in
Kates
in assessing Ms. Murphys damages for that past, certain loss. I would not
    interfere because the trial judge did not apply the principle in
Schrump
.

[62]

Nor
    would I interfere on the basis that the trial judge engaged in improper
    judicial speculation.

[63]

The
    appellants called Gerardus Rood, a civil engineer, to testify about the
    drainage proposals he prepared under the
Drainage Act
. Those proposals
were prepared after
    Mr. Mullen had removed the trees.
Mr.
    Rood was called
as a participant expert, and did not opine as to
    the chances that the drain could have been placed in such a way as to save some
    or all of the trees, had they not been cut down. All Mr. Rood could do is
    predict what effect his proposals would have had on the trees, had they not
    been cut down. If it were open to the appellants to argue that the trees would
    probably have been removed in any event, they were required to point to
    evidence which supports such a finding. The appellants called no expert
    evidence, and therefore one can only speculate as to what proposals might have
    been made and approved by the municipality if the trees had not been removed.

[64]

As
    the trial judge found, if the trees had remained in place, Ms. Murphy
    would most likely have opposed their removal to accommodate a municipal drain
    and [t]he drain could possibly have been placed in a different location, or
    different drainage options could have been considered and/or implemented. This
    was not improper judicial speculation. Rather, it simply reflected the
    appellants failure to adduce evidence to support their assertion.

[65]

The
    appellants third drainage-related argument is that the trial judge erred in
    accepting the evidence of Ms. Murphy, an absentee owner, that the Murphy
    property had sufficient drainage, over that of Paul Lantin, the tenant farmer
    who had farmed the property for many years, that the Murphy property was hard
    to drain, without providing any reason for doing so. This finding underpinned
    the award of the cost of the survey Ms. Murphy had to obtain for the purpose of
    the construction of a new drain by the municipality and the $24,968 cost of the
    new drain that had been assessed against the Murphy property as damages.

[66]

The
    trial judges finding is supported by the record and the path to her conclusion
    is apparent. Ms. Murphys evidence that the drainage was sufficient was
    supported by Mr. Mullens own evidence. He testified that the water problem
    wasnt so much a problem on her side, it was more or less on  on my side. I
    had  I had  had no drainage at all.

[67]

The
    drainage on the Murphy property was sufficient in part because of what Mr.
    Lantin did. Mr. Lantin testified that the Murphy property was hard to drain and
    that he had to make a furrow to get the water moving. The Mullen property had
    no sub-surface drainage, and its drainage problem could not be ameliorated by
    measures such as that taken by Mr. Lantin. It was after Mr. Mullen cut down the
    trees on the Murphy property that it had drainage problems.

[68]

I
    turn to the appellants remaining arguments.

(4)

The appellants remaining arguments

[69]

The
    appellants make four further arguments.

[70]

First,
    they argue that in assessing damages, the trial judge erred by simply taking
    one third of Ms. Murphys arborists estimated cost for replacing the entire
    tree line. His estimate was based on using 480 trees  a mix of 40 to 50 mm
    caliper trees and poplar whips  but the trial judge accepted that there were
    only 300 trees in the tree line. Further, Ms. Murphy had acknowledged that
    probably one half of the trees removed were on the Mullen property and the
    trial judge accordingly erred by not discounting the damages for the half of
    the tree line that was on the Mullen property.

[71]

There
    is no basis to interfere with the trial judges calculation of the cost of
    replacing the trees along one third of the tree line. The expert evidence was
    that 480 smaller trees were required to replace the tree screen that was
    removed from the Murphy property. Although the number of trees the expert recommended
    be planted was well in excess of the number of trees removed the replacement
    trees were much smaller and the larger number was required to generate an
    equivalent screen within a reasonable period of time.

[72]

Second,
    the appellants argue the trial judge erred in preferring the evidence of Ms.
    Murphys arborist that a deer fence was necessary to protect the new trees from
    the local deer population, over that of the appellants arborist that deer do
    not populate the area and, even if they did, a deer fence was not necessary.

[73]

There
    was evidence supporting the trial judges finding. She was entitled to prefer
    the evidence of Ms. Murphys expert over that of the appellants. This is not a
    basis for interfering with the trial judges damages assessment.

[74]

Third,
    the appellants argue that the trial judges choice of 200 metres as the length
    of the fence line on which the trees should be replaced and her award of
    $75,000 for loss of amenities are arbitrary and unsupportable.

[75]

I
    disagree. These determinations are far from arbitrary. Ms. Murphy testified
    that she wanted to replace the entire tree line. The trial judge concluded that
    was not reasonable, and, at para. 70, explained why she chose 200 metres:

A reasonable person would, in my view, wish to replace the
    privacy and the sound screen of the tree line along the property adjacent to
    the proposed building area for the home, plus an additional length.

[76]

Further,
    the trial judge explained the rationale for the $75,000 amount and how she
    determined it. As noted above, this amount recognized that Ms. Murphy would be
    waiting for at least 20 years before she had mature trees at the place where
    she plans to build her house and that she would most likely never have trees
    along the entire length of the property line as she did before. The character
    of the Murphy property was forever changed. As to how the trial judge
    determined the amount, she noted that it was impossible to determine how many
    of the 300 trees Ms. Murphys son had counted were on the Murphy property, as
    opposed to the Mullen property, so the trial judge took one half of that
    amount, namely 150 trees. While there was some precedent for an award of $1,000
    per tree
[7]
,
    because Ms. Murphy did not yet have a house on the property and had not
    yet started to build, she reduced that sum to $500 per tree. The $75,000 is the
    product of $500 multiplied by 150.

[77]

Finally,
    the appellants argue that the award of $213,471 is so inequitable and wholly
    erroneous as to justify appellate intervention.

[78]

This
    argument is unfounded. The appellants have not identified any reviewable error
    in the trial judges assessment of damages and the assessment is not palpably
    incorrect or wholly erroneous.

D.

Disposition

[79]

In
    the result, I would dismiss the appeal, with costs to Ms. Murphy in the amount
    of $20,000, all inclusive.

Released: December 9, 2021 P.R.

Alexandra
    Hoy J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. Thorburn J.A.





[1]

Although the statement of claim and style of cause refer to
    two plaintiffs, the judgment awards damages only to Ms. Murphy. Accordingly, I
    refer only to her throughout these reasons.



[2]

Although the trial judges reasons indicate that there has
    not been a house on the property since the 1970s, that appears to be a
    typographical error. Ms. Murphy testified that there had not been a house on
    the property since the 1870s. That timeline coincides with her familys
    acquisition of the property.



[3]
In
Wood
    Mountain
, the defendants were found to be trespassers, and the court
    granted a permanent injunction and awarded damages for lost rent and punitive
    damages. On appeal, the main issue was whether the plaintiff was also entitled
    to damages for the past loss of funding under a federal grant program. The
    Court of Appeal stated that [t]he concept of foreseeability applies to the
    quantification of damages for the tort of trespass and that [d]amages for
    trespass should place a plaintiff in the same position as it would have been
    absent the trespass: at paras. 24-25. The court concluded that the losses
    under the grant program were foreseeable. One of the direct consequences of
    this trespass was the loss of the [federal] funding, and [o]nce a court finds
    a loss was caused by a defendants wrongdoing, and the loss was foreseeable,
    the plaintiff is entitled to damages: at para. 26.



[4]

Allan

was
    reversed on the basis that liability was imposed on a ground not pleaded.



[5]
More recently,
Bettel v. Yim
was referred to in
Shah v. LG Chem, Ltd.
,
    2017 ONSC 2586, 413 D.L.R. (4th) 546 (Div. Ct.), at paras. 43-46, and
Shah v. LG Chem, Ltd.
, 2018 ONCA 819, 142
    O.R. (3d) 721, at footnote 3, leave to appeal refused, [2018] S.C.C.A. No. 520.



[6]
Although remoteness was not the point in issue in
Scalera
,
    Iacobucci J.s statement about foreseeability has been adopted by this court,
    although not in the context of the tort of trespass to land: see, for e.g.,
Buchanan v. GAN Canada Insurance Co.
(2000), 50 O.R. (3d) 89;
Meadows v. Meloche
    Monnex Insurance Brokers Inc.
, 2010 ONCA 394, 102 O.R. (3d) 312, at
    para. 23.



[7]

In
Kates
,
    for instance, the trial judge awarded $1,000 per tree for loss of amenities.


