A neighbour dispute leads to a jackhammered retaining wall and a $16,000 award, Dangerous vs Long-Term Offender classifications, and a costs award against a lawyer


This week on Legally Speaking with Michael Mulligan:

A long-running neighbour dispute over garbage, grass clippings, dog feces, a dead snake on a trampoline, and a retaining wall consumes 13 days of court time and results in a $16,000 award.

One of the feuding neighbours spray painted and then jackhammered a concrete retaining wall that protruded a few inches onto his property.

Absent a danger to life, or some other emergency, the law doesn’t permit a property owner to engage in a self-help remedy such as destroying property that crosses onto their lot.

In this case, the property owner that destroyed the wall was ordered to pay $16,000 in damages.

Rather than destroying the retaining wall, an application could have been brought in Supreme Court to modify the property line and provide compensation.

Also discussed is a case that considers the difference between Dangerous Offender and Long-Term Offender designations.

If someone is determined to be a Dangerous Offender, they can be sentenced to an indefinite period of incarceration.

In contrast, if there is a reasonable possibility of eventual control of risk in the community, someone can be designated as a Long-Term Offender and would be sentenced to a definite period of incarceration, to be followed by up to 10 years of supervision.

The large majority of Dangerous Offender designations are as a result of convictions for sexual offences where the offender “has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.”

The final case discussed on the show involved the successful appeal of an order that a lawyer pay costs for an unsuccessful application in a high conflict estate case.

The dispute had gone on so long, the lawyer’s client had also passed away.

While there is authority to require a lawyer to pay costs this requires a finding of “reprehensible” conduct that amounts to a “serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on [their] part, that is deliberate”.