



COURT OF APPEAL FOR ONTARIO

CITATION:  Knuston v. Guilbeault, 2013 ONCA 630

DATE: 20131017

DOCKET: C56929

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Martin Clifford Knuston and Dorothy Aileen
    Knuston

Plaintiffs (Respondents)

and

Marcel Guilbeault, Marc Guilbeault and Claudette
    Guilbeault

Defendants (Appellants)

Don Morris, for the defendants (appellants)

Andrew Baerg, for the plaintiffs (respondents)

Heard and released orally:  October 8, 2013

On appeal from the judgment of Justice R.P. Boissonneault
    of the Superior Court of Justice, dated January 25, 2012.

ENDORSEMENT


[1]

The appellants appeal the trial judges award of damages to the
    respondents for damage the appellants caused to the respondents property.

[2]

The parties own adjacent cottages.  The trial judge found that the
    appellants destroyed trees and foliage on the respondents property by cutting
    a road on the wooded property line between the appellants and the respondents
    properties without permission and by altering a watercourse on the appellants
    property.  The alteration of the watercourse on the appellants upstream
    property had two other consequences.  It changed the course of water on the
    respondents property and resulted in an extensive deposit of sand and silt on
    the respondents property.

[3]

The respondents ultimately did not seek the costs of removing the sand
    and silt deposited on their property.  The appellants insurer paid the
    respondents $90,000 to cover the costs of cleaning up the sand and silt and the
    respondents signed a release in favour of the insurer.

[4]

The trial judge awarded the respondents damages in the amount of
    $42,439.15 (the Tree Damages) for the destruction of trees and foliage,
    specifying that this amount was to cover cutting and removing dead tree stumps,
    applying fill and topsoil, and installing cedar hedging to replace the trees
    and foliage that had been destroyed.  The trial judge noted that installing
    cedar hedging was less costly than attempting to replace the trees that had
    been destroyed.

[5]

The trial judge awarded a further $42,369 (the Water Damages) to cover
    the costs of realigning the watercourse on the respondents property,
    constructing a berm and putting a layer of topsoil back on the foreshore and
    around the berm.

[6]

The appellants principal arguments are that: 1) the trial judges
    reasons are insufficient because they do not permit appellate review; 2) the
    trial judge erred by not concluding that the release signed by the respondents
    in favour of the insurer precluded the respondents from recovering the Water Damages;
    and 3) the trial judge erred in his calculation of the Tree Damages and the Water
    Damages.

[7]

We do not give effect to the first ground of appeal.  Read in
    conjunction with the record, the trial judges reasons are sufficient to permit
    review by this court.

[8]

Nor do we give effect to the second ground of appeal.  The release
    signed by the respondents specifically provides that,  it does not include
    damages for the destruction of trees, the reconstruction of the stream, and
    building of the berm around the streambed as alleged in [this action].  The Tree
    Damages and Water Damages were awarded in respect of this excluded damage.

[9]

We do, however, agree that the trial judge erred in his calculation of
    both the Water Damages and the Tree Damages.

[10]

In
    calculating the Water Damages at para. 250 of his reasons, he may have included
    the $9,750 net of taxes to add more topsoil and the $2,700 net of taxes to
    remove dead trees and stumps quoted by Ron Lauzon at p. 2 of his report.  Based
    on the report of Ron Lauzon, which the trial judge indicated he accepted, the Water
    Damages should be $26,455 plus applicable taxes, and not $42,369.

[11]

We
    also agree that the $29,894.15 amount referred to by the trial judge in para.
    248 of his reasons is incorrect.  It should be the $21,000 amount estimated by
    Mr. Warner, whose evidence the trial judge said he accepted.

[12]

Accordingly,
    the Tree Damages should be a total of $33,475, comprised of the $21,000 estimated
    by Mr. Warner plus the $9,775 and $2,700 at p. 2 of the Lauzon report, plus
    applicable taxes.

[13]

The
    total damages are, accordingly, $59,930 comprised of the $26,455 plus $33,475,
    plus applicable taxes.

[14]

The
    appellants are entitled to their costs of this appeal fixed at $10,000 all
    inclusive.

Alexandra
    Hoy A.C.J.O.

John Laskin
    J.A.

Michael Tulloch J.A.


