



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Lau v. Rai,









2010 BCCA 26




Date: 20100120

Docket:
CA035667

Between:

Yen Ping Lau

Appellant

(
Plaintiff
)

And

Gurnek Rai and Manjit Rai

Respondents

(
Defendants
)






Before:



The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Frankel





The Honourable Madam Justice Neilson




On appeal from:  Supreme Court of British Columbia, December 3, 2007

(
Lau v. Rai
, 2007 BCSC 1746, Vancouver Registry No. S042178)




Acting on his own behalf:



Y.P.
  Lau





Counsel for the Respondents:



A.J.
  Roberts





Place and Date of Hearing:



Vancouver,
  British Columbia





December 7, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  20, 2010









Written Reasons by
:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Madam Justice Neilson






Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

This litigation involves an action in trespass
between owners of two neighbouring residential properties.  Yen Ping Lau
purchased his home in 1994.  Gurnek Rai and Manjit Rai purchased the vacant lot
next door in 2002.  The Rai property is lower than the Lau property.  Excavation
work on the Rai property removed lateral support for the Lau property.  This
caused a portion of the Lau property to collapse, resulting in damage to some
of Mr. Laus flowerbeds and a portion of his fence.  To address this
problem, the Rais built a retaining wall abutting the line between the two
properties.  A large quantity of gravel was permanently placed behind the wall,
on the Lau property.  Mr. Lau sued, seeking general, special, punitive,
and aggravated damages.

[2]

Following a trial, Mr. Justice Powers of
the Supreme Court of British Columbia found that Mr. and Mrs. Rai had
trespassed on Mr. Laus property.  He awarded Mr. Lau $7,243.12 to
restore his property to its original condition, and a further $2,000.00 as
aggravated damages.  However, the trial judge declined to award punitive
damages.  His reasons for judgment are indexed as 2007 BCSC 1746.

[3]

Mr. Lau contends that the trial judge made
a number of errors in fact and in law, and made an inadequate damages award.  Mr. Laus
key assertion is that the trial judge should have found that Mr. and Mrs. Rai
committed a pre-planned intentional trespass on his property in order to
maximize the footprint of the house they were building.  Mr. Lau is firmly
of the belief that this is what occurred and that, because of this, he is
entitled to significant punitive damages.  To support his case, Mr. Lau
seeks to file, as fresh evidence, the affidavit of his son, to which is
attached the report of a geotechnical engineer.

[4]

The determination of this appeal is hampered by
the fact that Mr. Lau did not file a complete transcript of the evidence
at trial.  He filed only the evidence given by three defence witnesses:  two
geotechnical engineers and the operator of the excavation equipment.  In
addition, the last 50 pages of his appeal book consist of documents that were
not before the trial judge and are, therefore, not properly before this Court.

[5]

For the reasons that follow, I would dismiss
this appeal.

Factual
Background

[6]

Mr. Laus property is located at 6708 Mason
Court, Burnaby, British Columbia.  Mr. and Mrs. Rais property is
located at 7922 Mayfield Street.  The Rais plans called for their house to be
constructed five feet from the property line, the closest allowed by building
by-laws.

[7]

In mid-May 2003, excavation began on the Rai
property.  As a portion of the bank created by the excavation at the property
line between the Rai and Lau properties was saturated with water and appeared
ready to give way, it became apparent that some form of retaining wall was needed.

[8]

On Friday, May 23, 2003, Mr. Rai retained Paullus
Yeung, a geotechnical engineer.  Mr. Yeung attended at the building site that
afternoon, and met with Mr. Rai and his structural engineer, Cesar
Parayno.  After examining the site, Mr. Yeung prepared a Field Inspection
Report recommending that a two lock-block high retaining wall back-filled with
drain rock (i.e., gravel) be used to prevent further subsidence.  He also prepared
a sketch indicating that both the lock-blocks and gravel were to be placed entirely
on the Rai property.  That same day, the Rais asked Mr. Lau for permission
to remove a portion of his fence to facilitate construction of the retaining
wall.  Mr. Lau refused.

[9]

Excavation relating to the installation of the
retaining wall took place on Saturday, May 24, 2003.  This caused a 16-foot
section of Mr. Laus fence to fall.  When Mr. Lau learned of this, he
and his family became very upset.  They believed the fence had been pulled down
deliberately.  The trial judge, however, accepted the excavator operators
evidence that he did not intentionally tear down any portion of the fence.  On
that day, Mr. Rai told Mr. Lau that he would pay for any damage to
his property, and would restore it to its original condition.

[10]

Mr. Lau confronted the workers and demanded
that they stop.  A heated argument developed between members of the Lau and Rai
families.  Eventually, the police were called.  No further work took place that
day, or on the following day.

[11]

On Monday, May 26, 2003, Burnaby building
inspectors visited the Rai property and attempted, unsuccessfully, to mediate
the dispute.  Mr. Rai again said that he would pay for any damages to the Lau
property and restore it to its original condition.  Mr. Lau doubted Mr. and
Mrs. Rais sincerity.

[12]

Mr. Yeung returned to the building site on
the morning of May 26, 2003.  He found that the excavation and the retaining
wall practically were completed.  The retaining wall that had been installed
was four lock-blocks high.  Mr. Yeung prepared another Field Inspection
Report together with a sketch showing the lock-blocks abutting the line
between the two properties and back-filled with gravel.  The gravel was entirely
on the Lau property.  Because Mr. Yeung did not want to be involved in the
dispute between Mr. and Mrs. Rai and Mr. Lau, he resigned from
any further involvement in the project.  Mr. Rai then retained another
geotechnical engineer, Edward C.C. Yip.  Mr. Yip first visited the building
site on Wednesday, May 28, 2003.

[13]

The retaining wall was completed on May 28,
2003.  It is approximately ten feet high and 40 feet long.  It is back-filled
with approximately 1260 cubic feet (i.e., 60 tons) of gravel.  During
construction of the wall, approximately 42 feet of Mr. Laus fence was damaged,
and a considerable amount of soil was removed from his property.  A number of
his flower beds and rose bushes were also destroyed.

[14]

Mr. Yip provided Mr. Rai with a report
containing a number of recommendations with respect to the construction of the
residence on his property.  That report deals with the retaining wall as a
completed installation.

Trial
Judges Decision

[15]

As mentioned above, the trial judge found that
the removal of the first section of fence that was damaged was not deliberate. 
He also found that it was not the Rais intention at the outset to encroach on Mr. Laus
property, and that when subsidence occurred during the initial stages of the
excavation, building a retaining wall was a reasonable and acceptable way of
addressing the problem.  In this connection he noted that there was a danger
of further subsidence if there were heavy rains.

[16]

In finding that Mr. and Mrs. Rai
trespassed, the trial judge said:

[20]      I find
that the defendants have commit[ted] trespass on the plaintiffs property. 
Actionable trespass occurs when a party enters onto lands without the
permission of the occupier.  (Linden, Allen M.,
Canadian Tort Law
7th
ed. (Toronto:  Butterworths, 2001) at 639.)  It does not depend upon fault,
negligence or consequential damage.  (Klar, Linden et al.
Remedies in Tort
at 23-11.)  The defendants acknowledge that they committed trespass on the
plaintiffs property when their actions resulted in the subsidence of the
plaintiffs property and subsequent encroachment in order to build a retaining
wall.

[17]

The trial judge then assessed damages.  He held
that Mr. Lau was entitled to recover the costs of restoring his property to
its original condition.  With respect to the fence, the trial judge held that
the entire 92 feet along the property line should be replaced and painted, not
just the 42 feet that had been damaged.  However, he denied compensation for an
additional 50-foot section of undamaged side-fencing.  He also made an award
for the cost of replacing the top soil that had been removed, and for
replanting rose bushes and other plants.  Based on the estimates before him,
the trial judge assessed compensatory damages at $7,243.12.  In arriving at
this figure, the trial judge rejected Mr. Laus contention that general
damages should be assessed at approximately $50,000.00.  Mr. Lau had
arrived at this figure based on his estimate that the excavator had trespassed
on his property approximately 256 times to either remove earth or deposit
gravel, and that he should receive $200.00 for each time.

[18]

The trial judge also held that Mr. Lau was
entitled to aggravated damages to reflect the upset and distress he suffered as
a result of the damage to and encroachment onto his property.  Those damages
were assessed at $2,000.00.

Grounds
of Appeal

[19]

There is a lack of precision in how Mr. Lau
has stated his grounds.  On the basis of his factum and his oral submissions, I
take his grounds to be that the trial judge erred in:

(a)      not finding that it was the Rais intention from the outset
to trespass on his property;

(b)      not finding that the removal of the fence was deliberate;

(c)      not finding that the deposit of 60 tons of gravel on his
property constitutes a continuing trespass;

(d)      misapprehending certain evidence;

(e)      disallowing certain questions in his cross-examination of Mr. Yeung
and Mr. Yip;

(f)       failing to take into account that construction of the
retaining wall continued after he had refused to permit any further
encroachment onto his property;

(g)      calculating the cost of restoring his property; and

(h)      failing
to award punitive damages.

[20]

In Part 4 of his factumnature of order soughtMr. Lau
seeks an increase in compensatory damages to $27,948.56, and $30,000.00 in
punitive damages.  The compensatory damages include the cost of removing the
gravel and a charge relating to the use of his property from May 2003, until
the removal of the gravel.

Analysis

Fresh
Evidence

[21]

Mr. Lau seeks to tender the affidavit of
his son, Eric Lau.  That affidavit contains a detailed recitation of the
construction of the retaining wall and the dispute that arose between the two
families, all from Eric Laus perspective.  It also contains references to
aspects of the trial, including the testimony of witnesses, and rulings made by
the trial judge.

[22]

Attached as an exhibit to the affidavit is a
report prepared by Sean Riley, a geotechnical engineer.  That report is dated
November 6, 2009, i.e., one month before the hearing of this appeal.  Mr. Riley
takes issue with the efficacy of the lock-block retaining wall that was
installed.  He also opines that, over time, the earth underneath the Lau
property could migrate into the void spaces in the gravel, resulting in
settlement or collapse of a portion of that property.  He suggests steps that
could have been taken during the construction of the retaining wall to prevent
this migration.

[23]

Eric Laus account of what occurred in 2003 and
at the trial is clearly not fresh evidence.  All of this is part of the trial
record that Mr. Lau has chosen not to file.

[24]

Mr. Lau says that he retained Mr. Riley
prior to the trial, with a view to calling him as a witness.  He further
says that, because he did not have a written report from Mr. Riley, the
trial judge, on two occasions, refused to permit Mr. Riley to testify.  Mr. Lau
has not included those rulings in his material.

[25]

It would appear that the trial judges rulings
are grounded in Rule 40A of the
Rules of Court
, B.C. Reg. 221/90, which
deals with Evidence of Experts.  In particular, Rule 40A(3) requires that,
before a party can call an expert witness, a written statement setting out the
experts opinion must be served on the opposing party 60 days before the expert
testifies.

[26]

Mr. Rileys report is not fresh evidence. 
It is, in written form, the very evidence Mr. Lau unsuccessfully attempted
to call at trial.  That evidence cannot now be received unless Mr. Lau
establishes that the trial judge erred in not permitting Mr. Riley to
testify.  Mr. Lau has neither provided those rulings, nor challenged their
correctness.

[27]

I would refuse the application to admit Eric
Laus affidavit on this appeal.

Challenges
to Findings of Fact / Misapprehension of Evidence

[28]

A substantial portion of Mr. Laus factum
and his oral submissions are directed at challenging findings of fact made by
the trial judge.  For example, Mr. Lau contends, as he did at trial, that
his fence was intentionally pulled down, and that the Rais intention from the
outset was to encroach on his property, because it was less expensive to build a
lock-block retaining wall than to use other means to provide lateral support
along their shared property line.

[29]

The limits on appellate review of findings of fact are
well known.  Recently, in
Manjit International Development Ltd. v. Ng
,
2009 BCCA 429, Mr. Justice Tysoe said this:

[10]      The role of this Court is not to
retry the case.  This Court is a court of review and of error correction.  It
does not receive evidence or hear witnesses.  That is the role of the trial
court.  Consequently, this Court will not interfere with findings of fact by a
trial judge, absent palpable and overriding error plainly seen:
Housen v.
Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.  As stated by the majority in
that case:

[22]      
[Although] it is open to an appellate court to find that an inference of fact
made by the trial judge is clearly wrong, we would add the caution that where
evidence exists to support this inference, an appellate court will be hard
pressed to find a palpable and overriding error.  As stated above, trial courts
are in an advantageous position when it comes to assessing and weighing vast
quantities of evidence.  In making a factual inference, the trial judge must
sift through the relevant facts, decide on their weight, and draw a factual
conclusion.  Thus, where evidence exists which supports this conclusion,
interference with this conclusion entails interference with the weight assigned
by the trial judge to the pieces of evidence.

[11]      That is the same standard of
review applicable to a trial judges findings of fact based on the credibility
of a witness.  In
Lu v. Mao
, 2007 BCCA 609, Madam Justice Saunders
stated as follows:

[12]       this
Court does not interfere lightly with findings of credibility.  It is the trial
judge who is in the best position to assess credibility.  Only if the
assessment of credibility is based upon a significant misapprehension of
evidence or displays an error in principle will this Court interfere.

Hence, this
Court cannot interfere with the trial judges findings on credibility and
findings of fact unless it is demonstrated that she made an obvious error that
affected the outcome of the decision.

[30]

The trial judge had before him a great deal of conflicting evidence.  He
analyzed that evidence, assessed the credibility of the witnesses, and made
findings of fact.  Given that Mr. Lau has not provided all of the evidence
that was before the trial judge, it is not possible for this Court to generally
reconsider those findings.  It is, however, possible to consider Mr. Laus
contention that the trial judge misapprehended one piece of evidence.

[31]

At paragraph 11 of his reasons, the trial judge states
that the plan approved by the Rais engineer was to place lock-blocks near the
bank with gravel filling the space behind the blocks.  The trial judge then
refers to Mr. and Mrs. Rai having testified that when they began to
remove the soil for this purpose, the bank gave way and some soil from Mr. Laus
property caved in, causing the fence to fall.  The Rais further testified that
they moved quickly to put the lock-blocks in place to prevent further
subsidence.

[32]

Mr. Lau submits that in paragraph 13 of his
reasons, the trial judge made an error with respect to the order in which
events occurred:

[13]
The defendants did retain an
engineer to give them advice as to how to proceed once the subsidence occurred.
The engineer recommended the placement of the lock blocks and gravel backing.  The
engineer noted that the soil was of fairly high moisture content where it had
subsided and was concerned that the retaining wall be put into place as soon as
possible.
This resulted in the blocks being placed closer to the plaintiffs
property line or just on the plaintiffs property line than originally
anticipated.
I am not satisfied that the defendants proceeded in this
fashion intentionally for the purposes of making it easier to construct their
house within 5 feet of the property line.  The placing of gravel behind the
lock blocks has aided in the drainage of any moisture that may accumulate
against the retaining wall from the plaintiffs property as well as any seepage
that may have passed through the defendants property from other locations.

[Emphasis
added.]

[33]

It is clear that the trial judges reference to
an engineer is to Mr. Yeung.  Mr. Lau contends that in this
paragraph the trial judge erroneously refers to Mr. Yeung as having
recommended the retaining wall be placed right at the property line, with the
gravel on the Lau property.

[34]

Mr. Yeungs evidence is that he was
consulted before any significant subsidence occurred.  When he first visited
the building site on May 23, 2003, he was advised by Mr. Rai and Mr. Parayno
that they had encountered some soft ground and were concerned about the
stability of the excavation.  Mr. Yeung testified that when he looked at
the bank it appeared to be stable, but when he examined it more closely, he
found a layer of sand with groundwater in it.  Based on this observation, he
recommended the erection of a lock-block retaining wall with gravel filling the
space behind the wall.  Mr. Yeung prepared a sketch showing both the wall
and the gravel on the Rais side of the property line.  When Mr. Yeung
returned on Monday, May 26, 2003, he found that the retaining wall had been
placed at the property line, with the gravel on the Lau property.  How and why
the wall came to be in that location is not discussed in the transcripts filed
on this appeal.

[35]

I do not agree that paragraph 13 evinces a
misapprehension of the evidence.  The trial judge is not saying that the
retaining wall was built in the location recommended by Mr. Yeung.  What
the judge is saying is that the unstable soil conditions noted by Mr. Yeung
resulted in the wall being placed closer to the property line than originally
anticipated, which I take to be a reference to Mr. Yeungs recommended
location.  In other words, the trial judge found that circumstances
necessitated the wall being built closer to the Lau property than Mr. Yeung
had recommended because of what occurred on Saturday, May 24, 2003.  As the
judge stated in paragraph 19 of his reasons, [t]he subsidence of soil occurred
on [Mr. Laus] side of the property line and required that the loose soil
be removed and the gap between the lock block and the remaining soil be back
filled with gravel.

Disallowance
of Questions In Cross-Examination

[36]

Mr. and Mrs. Rai called both Mr. Yeung
and Mr. Yip as witnesses.  Mr. Lau attempted to cross-examine them
with a view to establishing that alternative methods of supporting the bank
created by the excavation could have been used, and that the Rais chose the
least expensive method.  It would appear that Mr. Lau sought to elicit
that evidence to support his contention that it was always the Rais intention
to trespass on his property.

[37]

In response to the first questions asked of him
in-chief, Mr. Yeung said that he is a professional engineer, specializing
in geotechnical engineering.  He then answered questions designed to bring out
what he had done on his two visits to the building site.  During Mr. Yeungs
examination in-chief his two Field Inspection Reports and sketches were
marked as exhibits.  Those reports are written on the letterhead of a
geotechnical engineering firm.  As for Mr. Yip, the first question asked
of him in-chief elicited that he is a geotechnical engineer.  During his
examination in-chief, Mr. Yip referred to two reports he had written setting
out his observations and recommendations. One report includes a sketch of the
building site and retaining wall.  Those reports had previously been marked as
exhibits.  Both are written on the letterhead of a geotechnical engineering
firm and bear Mr. Yips seal as a professional engineer.

[38]

During Mr. Laus cross-examination of Mr. Yeung,
counsel for Mr. and Mrs. Rai objected to the witness being asked
hypothetical questions regarding alternate methods that could have been used to
shore up the bank.  Counsel submitted that Mr. Yeung had been called as a
lay witness to testify as to what he heard, what he said, what he did, and
that it was improper for Mr. Lau to attempt to elicit expert opinion
evidence from him, as no notice had been given.  Although not specifically
mentioned, it is apparent that counsel was referring to the notice requirements
in Rule 40A.  In sustaining that objection, the trial judge stated:

I will not allow
this line of questioning.  It is trying to put in expert opinion evidence when
there has been no notice given, and it would be unfair and contrary to the
rules of court if I allowed that to occur.

[39]

The same objection was raised during Mr. Yips
cross-examination.  Once again, Mr. and Mrs. Rais counsel successfully
argued that Mr. Laus questions should be limited to what was done,
said, or heard by Mr. Yip, and could not extend to matters involving Mr. Yips
professional opinion.

[40]

Mr. Laus complaint regarding the
restrictions placed on his cross-examination of Mr. Yeung and Mr. Yip
raises the issue of whether, and if so to what extent, the requirements of Rule
40A apply when one party seeks to elicit an opinion that is within the
expertise of a witness called by the other party, when that opinion did not
form part of the witnesss evidence in-chief.  However, I do not propose to deal
with this issue for two reasons.

[41]

The first reason is that neither party addressed
the interpretation and application of Rule 40A in their respective arguments. 
The second is that I am unable to see how Mr. Laus case could have been
improved had he obtained the sought-after opinions.  Even if both Mr. Yeung
and Mr. Yip had testified that there were more costly alternative methods
of addressing the subsidence problem that did not involve encroaching on Mr. Laus
property, that evidence would not have advanced Mr. Laus position that Mr. and
Mrs. Rai always intended to encroach.  It is clear that Mr. Yeung was
consulted shortly after the first subsidence occurred, and that he recommended
constructing the retaining wall on the Rais side of the property line.  There
is nothing to suggest this was not a reasonable way of dealing with the problem
that had arisen.  There is also nothing in the limited transcripts that have
been filed that supports Mr. Laus contention that the final placement of
the wall was premeditated on the part of the Rais.

Assessment
of Damages

[42]

Mr. Lau submits that damages awarded do not
adequately compensate him.  He further submits that the trial judge erred in not
awarding punitive damages.

[43]

With respect to the cost of replacing and
painting his fence, Mr. Lau says that the trial judge erred in not
including the 50-foot section of side-fencing that is continuous with, and
perpendicular to, the fence that separates his property from the Rais.  In
deciding not to include that section, the trial judge stated that it had not
[been] affected.  As it has not been shown that the judge erred in that
finding, there is no basis on which to increase this aspect of the award.

[44]

As he did at trial, Mr. Lau argued that he
should be awarded damages for each time the excavator encroached on his
property to either remove soil, or to deposit gravel.  There is no merit in that
argument.  I agree with the trial judge that what occurred is essentially one
trespass.

[45]

Mr. Lau next submits that he is entitled to
compensation based on the fact that the gravel placed behind the retaining wall
remains on his property.  He says that the gravel should be removed and that
the trial judge erred in not addressing this question.

[46]

That the trial judge did not address the removal
of the gravel is explained by the fact that he was not asked to consider this
question.  There is nothing in Mr. Laus statement of claim (prepared by a
solicitor) seeking removal of the gravel.  Further, there is nothing in that
portion of the trial record that has been filed indicating that this point was
taken before the trial judge.

[47]

While it is true that the gravel remains behind
the retaining wall, there is no evidence that its presence has, or will have,
any detrimental effect on Mr. Laus property.  The trial judge awarded
compensatory damages based on the cost of restoring Mr. Laus property to
its original state.  That award includes the cost of new fencing and the cost
of replacing the top soil and plants that were removed.  There is nothing to
indicate that the condition of Mr. Laus property is now different from
what it would have been had the area behind the wall been returned to its
original state by putting in the same substances removed during the excavation,
i.e., layers of topsoil, fill, silt, and sand.  The case at bar is, therefore,
unlike
Epstein v. Cressey Development Corp.
(1992), 65 B.C.L.R. (2d) 52
(C.A.), where the plaintiff was awarded damages as compensation for the decrease
in the value of her property caused by a continuing trespass, i.e., remnants
from improperly installed anchor rods that had been removed remained beneath
the surface of her property.  Rather, it is comparable to
Vancouver Block
Ltd. v. Empire Realty Company Ltd.
(19 June 1979), No. CA780018 (B.C.C.A.),
wherein a compensatory damages award for a continuing trespass was set aside
because anchor rods left beneath the surface of the plaintiff property had no affect
on the use or value of that property.

[48]

Mr. Lau submits that he is entitled to
punitive damages because Mr. and Mrs. Rais conduct was arrogant and
high-handed.  That description is, however, not supported by the trial judges
findings.  The trial judge found Mr. and Mrs. Rai to be credible
witnesses.  More specifically, in declining to award punitive damages, the
judge said:

[28]      I do
not award anything for punitive damages.  I accept that the defendants were
acting reasonably when they immediately offered to be responsible for restoring
the plaintiffs property to its original condition.  They provided a letter of
apology which was delivered through city hall, who was also trying to mediate
this dispute.  I am satisfied that they were willing to pay reasonable
compensation to restore the plaintiffs property to its original condition.  The
parties may have disagreed as to what was reasonable, but I am satisfied the
defendants were genuine in their efforts to try and resolve the dispute.  I am
also satisfied that the defendants did not simply ignore the plaintiffs wishes
and encroach on their property in order to save money or to allow them to
improve their view from their home by building closer to the plaintiffs
property.

[49]

As recently discussed in
Bowen Contracting
Ltd. v. B.C. Log Spill Recovery Co-operative Assn.
, 2009 BCCA 457, not
every act of trespass warrants an award of punitive damages.  What is required before
such an award can be made is extreme or exceptional conduct deserving of
punishment and disapprobation.  No such conduct was proven in the case at bar
and Mr. Lau has not been able to show that the trial judge erred in coming
to the conclusions he did.

Conclusion

[50]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The Honourable
Mr. Justice Lowry

I agree:

The
Honourable Madam Justice Neilson


