This week on Legally Speaking with Michael Mulligan:
When someone trespasses on property by building or installing something on it without permission, damages can be awarded. The amount of such an award will depend on the circumstances:
a)nominal damages if the owner had not proven any actual loss
b)actual damages suffered by the owner; or
c)damages equal to a sum that should reasonably be paid by the trespasser for the use of the land.
In the appeal discussed on the show, a neighbour was building a new home and excavated all the way up to their property line to build a basement. The property line and excavation were very close to the adjacent house, necessitating a fence being installed to prevent people from accidentally falling into the hole.
Because the excavation was right to the property line, the fence constituted a trespass onto the adjacent property. It was in place for several months and prevented the neighbours from accessing their backyard from the outside.
While a trial judge had awarded $15,000 for the trespass, this was reduced on appeal to $1,000. The small area of land occupied by the fence had no commercial rental value and the neighbour had already been compensated for the nuisance caused, some flowers that died because they couldn’t be watered and damage to a retaining wall.
Often nominal damages for trespass of this kind will only be $1, but $1,000 was permitted by the judge on appeal.
Also, on the show, the doctrine of Caveat Emptor is applied to a claim based on alleged problems with a house.
The judge deciding the case referred to a law professor’s description of the doctrine: Absent fraud, mistake, or representation, a purchase takes existing property as he finds it, whether it be dilapidated, bug-infested or otherwise uninhabitable or deficient in expected amenities unless he protects himself by contract terms.
While real-estate contracts often include a property disclosure statement, these only reference problems known to sellers and don’t result in a general warranty with respect to the quality of a property.
The plaintiff in the case was described by the judge as a sophisticated real estate investor and a professional engineer who operated a consulting firm specializing in construction defects. His evidence was found by the judge to be unbelievable. This conclusion was, in part, based on the judge’s finding that his claim that the home sellers improperly removed a washer and dryer and replaced them with mould-infested appliances was undermined by photographs taken after the sale was completed depicting the washer and dryer still in place.
Finally, on the show, a case involving the remedy for a finding that police improperly searched a person’s wallet, locating some drugs.
In Canada, when police are found to have breached someone’s constitutional right to be free from unreasonable search or seizure, a judge then needs to determine what the remedy should be.
If a judge concludes that permitting the Crown to use evidence obtained in an unconstitutional way would bring the administration of justice into disrepute, they can exclude the evidence from consideration in a trial.
There is also authority for a judge to grant “such remedy as the court considers appropriate and just in the circumstances.”
In the case discussed, the accused pleaded guilty after the judge declined to exclude the evidence of the drugs located in the wallet. The judge did, however, take the Charter breach into consideration on sentencing and imposed a conditional discharge rather than a seven-day jail sentence the Crown asked for.
An automated transcript of the show:
Legally Speaking Aug 25, 2022
Adam Stirling [00:00:00] It’s time for our regular segment with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking on CFAX 1070. Good morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Good morning. I’m doing great.
Adam Stirling [00:00:10] Some interesting stories on the docket today. I’m reading the first one, an award for a neighbour construction dispute reduced on appeal. There’s a lot there. Set this up for us.
Michael T. Mulligan [00:00:20] You’re quite right. There is a lot there. And I think part of what’s there is some good advice for people who may be doing construction or dealing with their neighbours. The background of this case involved a neighbour who was rebuilding their home and it was their house was fairly close to their neighbour’s house and the neighbour doing the construction work had decided to put in a basement which necessitated excavation work. It looks like they decided that they were going to maximize the size of their basement because they decided to excavate all the way up to the very edge of their property line, which the result of which was an open pit right next to the neighbours path to the backyard, which was fairly narrow down the side of the home. The next-door neighbours, I think not unreasonably, were concerned that this was potentially unsafe. They had children and so they asked, do something be done about it. And the neighbour doing the construction work responded by offering to put up a fence like one of those construction fences to stop people from falling into the hole. Things seemed to, however, deteriorate because it sounds like the neighbours living next to the construction weren’t too fond of it.
Adam Stirling [00:01:41] mmhmm.
Michael T. Mulligan [00:01:41] And started, they started by responding, saying that you can put up a fence. We want $25,000 to rent the space for the fence, for a few inches on their property. And then they raised their demand to $35,000 saying that if you don’t take the fence down that was put up in the interim, you must have agreed to the $35,000 rental to put your safety fence up. And so that’s the fact pattern that eventually got to court. And then later on to an appeal decision which just came out. At the original trial, the judge hearing it awarded damages to the people who lived next to the construction, and the judge did so in a couple of different ways. The judge granted an award for $5,000 for nuisance on the basis that the irritation disruption caused by the construction right up to the property line, but then awarded an additional $15,000 for trespass.
Adam Stirling [00:02:52] hmm.
Michael T. Mulligan [00:02:52] On the basis that the neighbour doing the construction work and trespassed by putting the fence up at the request of the next-door neighbour to stop people from falling in the hole.
Adam Stirling [00:03:04] hmm.
Michael T. Mulligan [00:03:04] The fence was put up just on the other side of the property line because they had excavated all the way to the property line to put in the biggest possible basement. And so, the issue on the appeal was, was that proper? Should the original judge have awarded the $15,000 for trespass in the form of this fence going up? And I think three occasions when a construction worker had stepped onto the property, I think to put the fence up or take it down, things of that sort. And the judge on the appeal had to therefore analyze the legal basis upon which trespass can exist and how you should properly calculate damages where somebody trespassers, right, walking on property or building something like a fence, putting it there. And the judge on the appeal concluded that there were three different ways a judge could calculate the proper damages for trespassing. The first one would be referred to as nominal damages, where somebody hasn’t proven any actual loss. And the judge points out that often nominal damages awards would be something like $1. You know yes, you shouldn’t put the fence over the line, but nothing came of that, so here, here’s a dollar.
Adam Stirling [00:04:26] yeah.
Michael T. Mulligan [00:04:27] For actual damages where the trespass caused some damage. Right. And interestingly here, the neighbour’s inability to walk safely down the side of their house meant they couldn’t water some flowers.
Adam Stirling [00:04:40] hmm.
Michael T. Mulligan [00:04:40] Outside. And so, there was an actual damage award, I think, of $200 for the dead flowers.
Adam Stirling [00:04:45] Interesting.
Michael T. Mulligan [00:04:46] And that is Fine.
Adam Stirling [00:04:47] Yeah.
Michael T. Mulligan [00:04:47] And then the final way a judge could calculate damages for trespass would be the amount that somebody would reasonably pay for use of the land had they rented it. You could also let. So, if somebody, you know, decided to, you know, build their house on their neighbours property or something great. You could award what would the rent have been for that space? Right. But here, because the land in issue was this like two-inch strip right along where the fence was put. Right. The judge concluded on the appeal that it was a mistake to order $15,000 in damages, right, the land wasn’t rentable. You know, the cost of the flowers was already compensated for. And indeed, there had been this other separate award of $5,000 for the nuisance caused by this, you know, big hole up to the property line that was there for an extended period of time. Right.
Adam Stirling [00:05:44] Mm hmm.
Michael T. Mulligan [00:05:45] And so as a result, on the appeal, the court concluded that what should have been awarded was nominal damages, $15,000, that’s certainly not nominal. And the actual nuisance and dead flowers and so on were already compensated for. But the court concluded that nominal damages don’t always have to be $1 but pointed out that they should still be a small amount. And so, the result on the appeal was that the award of $15,000 for trespass in the form of the fence being up for a number of months, taking up a couple of inches of property and the workmen walking there to put the fence up. The nominal award should be $1,000 and not $15,000. And so the takeaway here for people is, first of all, you need to be courteous that would probably be job one; Two, you may not want to excavate right up to if you’re building something right up to your property line such that, you know, safety equipment can’t get in and people can’t get in and out, that may not be a good idea. Right. But at the end of the day, it’s not going to be a windfall for the aggrieved neighbour. They’re not going to get, you know, tens of thousands of dollars and indeed the effort of the aggrieved neighbour next to the construction to try and extract 25 or $35,000 in sort of quote unquote rent for the space, the fence going. That’s not going to work either. And so be courteous. Maybe don’t put your foundation right up to the edge of the property. But neighbour disputes aren’t supposed to be windfalls. And so, these kind of irritations are going to result in generally nominal amounts. They may not be a dollar, but it’s not going to be a lot. So, act reasonably, try to get along with your neighbours and of course don’t expect there to be some windfall at the end of the day that you can extract if your neighbour isn’t planning ahead and decides that they want their basement running right up to the property line. So, there it is.
Adam Stirling [00:07:50] That story is a fascinating one, has to do with a legal doctrine, specifically a word or a term that many of us have heard before. The doctrine of caveat emptor. What’s that?
Michael T. Mulligan [00:07:59] Indeed, was the Latin term people sort of refer to it. It’s like buyer beware.
Adam Stirling [00:08:03] Yeah.
Michael T. Mulligan [00:08:03] And indeed. It’s a legal principle. It still applies and it applies in B.C., and it applies to real estate transactions. And this particular case, which just came out with the case out of Duncan, and it involved the purchase of a home there, the couple who was interested in purchasing a home saw that it was I guess I got wind that it might be for sale and went and looked at it before it was listed. They made an offer, and the agreement was reached to purchase the home. The issues arose because when the home was looked at, there was some renovation work being done in the basement with the full knowledge of the people who were purchasing it right they saw the work going on. And then there was as part of the real estate transaction, as is commonly the case, there was a thing called a property condition disclosure statement, which people may have seen if they’ve been involved in buying or selling the house and the property condition disclosure statement will have a whole list of questions, they ask things like, Are you aware of any problems with the heating system? Are you aware of any moisture problems, things like this? And often the seller would answer that, saying, no, no, no. Right. But you may not want to rely upon that as a guarantee that everything is going to be okay. And here the purchaser, purchasers did not get a building inspection done, even though they had lots of opportunity to do one.
Adam Stirling [00:09:33] Hmm.
Michael T. Mulligan [00:09:33] And indeed, this was interesting. The purchaser was a professional engineer who specialized in property defects.
Adam Stirling [00:09:42] huh.
Michael T. Mulligan [00:09:43] And so had some expertise himself and was described as an experienced real estate investor. And so, the purchaser bought the home and then they complained that various things weren’t satisfactory. They complained that the heating system wasn’t sufficient for the whole building and some of the work they complained didn’t have permits properly obtained for it, things like this. They also made it claim, which may have been their downfall, claiming that the sellers had improperly removed the washer and dryer, replacing them with a mold infested, unusable washer and dryer.
Adam Stirling [00:10:18] eggh.
Michael T. Mulligan [00:10:18] And so their claim included that now that was perhaps where their downfall started because the judge astutely found that there were pictures of the washer and dryer, including after they had gotten the home, showing that the old one, the good ones, had not been removed.
Adam Stirling [00:10:37] oohhh.
Michael T. Mulligan [00:10:37] Or still in the pictures. Under an appraisal.
Adam Stirling [00:10:41] Interesting
Michael T. Mulligan [00:10:42] afterwards.
Adam Stirling [00:10:42] Wow.
Michael T. Mulligan [00:10:42] So that didn’t do any good for the credibility of the engineer purchaser. Right. You can imagine how that would have been a pretty unimpressive state of affairs for the judge when it became apparent on the photographic evidence that the claimed scooping of the washer and dryer didn’t happen.
Adam Stirling [00:11:02] Yeah.
Michael T. Mulligan [00:11:02] Because they were still in pictures after the purchasers got the home. And so, the judge then, in that context, attempt to analyze the various other claims or things like the heating systems no good or these renovations weren’t done well. The defendants in this case called people, including the inspector that inspected the thing, saying that, yes, everything seemed fine from his perspective. And the judge then analyzed that concept that we started with that concept of caveat emptor. And the idea there is that absent somebody, a seller, engaging in things like fraud or willful fraudulent misrepresentation, right. You know, claiming something is untrue to get somebody to enter into an agreement to buy something.
Adam Stirling [00:11:53] Yeah.
Michael T. Mulligan [00:11:54] That the purchaser has the obligation to make sure that the property is satisfactory. And the principle there is that absent fraud or misrepresentation, the purchaser takes existing property as he finds it. Whether that means dilapidated, bug infested or otherwise, and it’s not the there is no guarantee that everything is going to be up to snuff for a potential purchaser. That’s that concept of caveat emptor. There is an exception to that. Right. One of the things there are a couple of exceptions. One would be if you have a seller who engages in fraud or non-innocent misrepresentation, which could be an exception to that.
Adam Stirling [00:12:37] mm-hmm.
Michael T. Mulligan [00:12:37] There could also be an exception for what are referred to as that are latent defects, those are defects that you couldn’t observe by reasonable diligence and inspection and latent defects which render the property dangerous or unfit for habitation. Right. That’s another exception. The judge found that that wasn’t the case here, even though there were complaints about things like the heating system not being up to snuff. The judge found that the sellers who had lived in the home for 14 years certainly didn’t seem to be aware of some latent defect making home unfit for habitation. It had been their home for many years and so found that that hadn’t been made out. And so, one of the takeaways for people is that you have an obligation as the purchaser to be diligent in inspecting property. And you may not want to rely upon things like a disclosure statement listing various things, in part because that statement uses the language: I am not aware of. Right. And so, if the seller is unaware of some problem like the, you know, maybe the heating system should be more powerful or, you know, maybe there was more behind the wall or something. Right. A person can truthfully answer that statement, I don’t know about mold issue, and I don’t know. But any problem with the heating system, it could be that the heating system has some, you know, issue with it or there’s mold behind the wall. But if the person isn’t doing that fraudulently, they’ve, you know, accurately responded that, no, they’re not aware of any such problem. That’s it. And if you’re the purchaser, you’ve got an obligation to do your due diligence, look at something and make sure it’s satisfactory. And so that’s, I think, the really important takeaway for people in addition to perhaps if you’re going to be making some claim, make sure there is some photographic evidence that undermines the very basis of what you have to say, that may, of course, have a pretty broad impact on everything else you’re claiming, particularly when you’re somebody who’s a sophisticated person, who like in this case, should have known better and would have had, in fact, professional expertise themselves to make some form of inspection or appropriate enquiry. So, there it is.
Adam Stirling [00:14:54] There we are, legally speaking, Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday here on CFAX 1070. And we will take a quick break and continue the conversation coming up right after this.
Adam Stirling [00:15:05] Legally Speaking continues here at FCFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. The third story that we’re examining this week, Michael, an interesting one, because most of us laypeople out there in the audience, in either fiction or something else, we know that if a piece of evidence can be deemed inadmissible in court, an entire case can turn on that. Who knows how many legal dramas have been written over the years about whether or not that finding might be made in the real world, though, just because something is deemed inadmissible, or a search was unlawful doesn’t necessarily mean the whole case gets thrown out. How does it work?
Michael T. Mulligan [00:15:41] You’re quite right. And maybe this is sort of in keeping with our kind of moderate Canadian nature. But in Canada, under the charter, it’s a twostep process. And the way that works is that if there’s an issue about whether the police should have, for example, searched for something in a way they did, the judge, first of all, has to determine whether the person’s constitutional right has been infringed, for example. you have got a right to be free from unreasonable search and seizure. And in the case in question, the issue involved whether the police had properly searched somebody’s wallet when they had arrested them. The way that works is that when the police have grounds to arrest somebody and here they were arresting somebody for allegedly obstructing a peace officer, the police are permitted, when they are arresting somebody, to search for either evidence of the offence for which they are arresting the person which can’t be much when you’re arresting somebody for obstruct a peace officer; or evidence that might be there, or searching for things like officer safety or means of escape. Right. So, for example, police could search somebody to make sure they don’t have weapons or handcuff keys things like that. Right. But the power to search somebody when they’re arresting a person isn’t a limited right. The police can’t, you know, do a strip search of everyone they’re arresting for, you know, obstruction, for example,.
Adam Stirling [00:17:16] Yeah.
Michael T. Mulligan [00:17:16] Or whatever it might be. So here the judge found that when the police arrested somebody for obstruction and then did a search of the person that included going through their wallet where they found some drugs, the judge found that they shouldn’t have done that because your search, you knew who the person was. You weren’t searching the wallet for somebody who would be offence and they didn’t think there was a weapon hidden in the wallet, as they went through it and found the drugs. So, the judge found that the search of the wall, it was not permitted pursuant to that search, incidental to a lawful arrest. And as a result, the person’s right to be free from unreasonable search and seizure had been breached. But in Canada, that conclusion doesn’t mean automatically that the drugs the police found in the wallet would be excluded from evidence. A judge has to go on and have further consideration to what should happen, what remedy should there be for that improper search of the wallet? And there are two sections of the charter that potentially provide a remedy. The one that was most commonly used when there has been a search it wasn’t proper, would-be section 24.2 The Charter. And that section provides for a court to exclude evidence. Right. Where people would be familiar with that. Right. Just as you said, that’s a common theme in movies and so on.
Adam Stirling [00:18:48] Yeah, yeah.
Michael T. Mulligan [00:18:49] But in Canada, the way it works is that if you get a breach, then a judge, a breach of a charter right, the judge then would have to go on and consider whether admitting that evidence into the trial would bring the administration of justice into disrepute.
Adam Stirling [00:19:05] Hmm.
Michael T. Mulligan [00:19:05] So if you think about that for a moment and there’s a weighing and the idea there is that if the let’s say the police have done something improper, like searching somebody without a warrant or conducting a search who went beyond what they were allowed to do, a court wouldn’t want to say, well, go ahead, we can use that anyways. Right. Because the idea is that would be sort of countenancing that unlawful search. Right. And people might well say, well, hold on, what’s going on? The police shouldn’t be allowed to just rummage through somebody’s underwear drawer and then be able to use the evidence we found. That’s not on, what’s going on here. Right. But the analysis there is not an analysis of, you know, should we or punish the police or should we do something to help out the person? Right. The analysis that a judge has to engage in is whether allowing the evidence that was found in that way to be used in a trial, whether doing that would bring the administration of justice into disrepute. But freedom is bigger picture thinking about how that would impact on the justice system generally, right? If you had police who were, you know, routinely do, they could just, you know, go into your house with a warrant and see what they could find, and the evidence could be used anyways. Right. People, I think, would be. Well, hold on.
Adam Stirling [00:20:25] Yeah.
Michael T. Mulligan [00:20:25] What’s that? Right. We can’t have that. But not every trivial or small breach of somebody’s right necessarily going to lead to that conclusion. Right. So, an example might be, let’s say the police get a search warrant for somebody’s home and there’s a typographical error and the wrong address is put on, numbers are inverted. Right. Well, there was no search warrant for the home. Right. But.
Adam Stirling [00:20:50] Oh, I see.
Michael T. Mulligan [00:20:51] An example, you might say. Well, yes, there was no warrant that used to house. The warrant was for the house across the street because somebody typed the wrong number on the piece of paper. But everyone intended this house, right? That kind of an innocent mistake. You probably would not conclude that admitting evidence found pursuant to an otherwise proper warrant would bring the administration of justice into disrepute. Just a whoops kind of a problem. Right. And so that’s why there is this weighing. But in the case, it was just decided. The interesting thing is the judge said, well, look, you know, this was improper, and he didn’t want to send a message to the police to keep on keeping on with this kind of a general search outside of what their actual authority is. But the judge found that excluding the evidence also wouldn’t be an appropriate remedy. And so, the judge went on to consider Section 24.1, which was another section of the Charter, right before the 24.2 of the deals with excluding evidence. And that 24.1 Section allows a court to read any remedy that the court considers appropriate and just in the circumstances. And so, the interesting approach that this judge used is that the judge found that the treatment of the search there was a breach of the person’s rights, but the evidence shouldn’t be excluded under that 24.2 test. But instead, what the judge did, is took into account that breach when sentencing the person because the fellow eventually pled guilty to possessing the drugs found in the wallet. And what the judge did was, instead of oppose imposing a seven-day jail sentence, which is what the crown was asking for, the judge imposed a conditional discharge followed by some probation. And the judge, as a remedy for this improper search, took that into consideration when imposing sentence. And so, it’s an interesting example of how there is some flexibility in Canada in terms of how judges are responding to things like a search that may not be lawfully permitted. It’s not always that the evidence will be excluded. And here there was a bit of a creative remedy imposed by the judge to reduce the sentence, rather than excluding the evidence and causing the person to be acquitted altogether.
Adam Stirling [00:23:13] All right, Michael Mulligan, Legally Speaking, thank you as always, my friend. Until next week.
Michael T. Mulligan [00:23:17] Thank you so much. Have a great.
Adam Stirling [00:23:19] Day. You too. By now, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers Legally Speaking on CFAX 1070.
Automatically Transcribed on September 1, 2022 – MULLIGAN DEFENCE LAWYERS