



COURT OF APPEAL FOR ONTARIO

CITATION: Cline v. Drummond, 2019 ONCA 188

DATE: 20190307

DOCKET: C64112

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Patrick Robert Cline, Anne Cline and

Jeffrey Michael Patrick Cline

Plaintiffs

and

Susan
    Elizabeth Drummond

Defendant

AND BETWEEN

Susan Elizabeth (Drummond) Johnson and

Christopher St. Clair Johnson

Plaintiffs by Counterclaim (
Respondents
)

and

Patrick
    Robert Cline, Anne Cline and

Jeffrey Michael Patrick Cline

Defendants by
    Counterclaim (
Appellant)

Jeffrey Michael Patrick Cline, acting in person

Les Protopapas, for the respondents

Heard: March 5, 2019

On appeal from the
    judgment of Justice C. Stephen Glithero of the Superior Court of Justice, dated
    June 27, 2017, with reasons reported at 2017 ONSC 3916.

REASONS FOR DECISION

[1]

This case arises out of a protracted dispute
    between neighbours. The main action related to a property line dispute that was
    settled before trial. Accordingly, the trial judge only dealt with the
    Johnsons counterclaim against Jeffrey Cline, and Jeffrey Clines counterclaim
    against the Johnsons, both of which included allegations related to nuisance
    and invasion of privacy. Patrick and Anne Cline were no longer parties to
    either counterclaim as a result of the settlement.

[2]

This is an appeal from the trial judges
    findings on two fundamental points: (a) that the respondents actions did not
    constitute nuisance or an invasion of privacy; and (b) that the appellants
    actions amounted to nuisance.

[3]

Although the appellant had counsel at an earlier
    point in these proceedings, he represented himself during oral argument. We
    have considered the arguments advanced in both the factum filed by his previous
    lawyer and the arguments he advanced in oral submissions.

[4]

First, the appellant argues that the trial judge
    erred by concluding that he was not entitled to damages for nuisance or
    invasion of privacy. He says that the appellants have been invading his privacy
    for years by using video cameras that are pointed toward his property. The
    trial judge made findings of fact to which we defer.  He applied the correct
    legal test for the tort of nuisance and addressed the substance of the correct legal
    test for the tort of invasion of privacy, also referred to as intrusion upon
    seclusion, from
Jones v. Tsige
,
2012
    ONCA 32 and applied it to those facts. We would not interfere with his conclusion
    that nuisance and invasion of privacy had not been made out.

[5]

Second, the appellant contends that the trial
    judge erred by failing to make an adverse inference against the respondents on
    the basis that they should have produced more video surveillance than they did.
    We disagree. It was open to the trial judge to reject the appellants suggestion
    that the respondents had destroyed evidence. It was also open to the trial
    judge to conclude that the missing video would not have substantiated the appellants
    position in any event. As the trial judge found, it was more reasonable to
    infer that the videos had not been watched, except in relation to those
    incidents that directly involved the appellant. We see no error in the trial
    judges conclusion that all relevant evidence had been produced.

[6]

Third, the appellant claims that injunctive
    relief should not have been awarded by the trial judge. Given the trial judges
    conclusions about the appellants malice and threatening behaviour towards the
    respondents, we see no error in his decision to grant an injunction restraining
    the appellant from all forms of communication with the respondents, except by
    their written invitation or agreement.

[7]

Fourth, the appellant argued during oral
    submissions that the trial judge erred by finding police officers credible when
    they were clearly not. We see no such error. Although the trial judge made
    multiple credibility findings, he was duty bound to do so. The fact that those
    findings do not accord with the appellants view of the witness veracity is
    not a reason to set aside those findings.

[8]

Finally, the appellant argued that the trial
    judge was biased and prejudiced. We see no evidence to support that claim. The
    trial judge carefully, patiently, and methodically considered all evidence in
    this case, identified the live issues before the court, came to findings of
    fact and correctly applied the law.

[9]

The appeal is dismissed. Costs of the appeal are to the
    respondents in the amount of $10,000, inclusive of H.S.T. and disbursements.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.


