IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This trial involves a claim by Mr. Reno Pellegrin against Mr. John Wheeldon for assault. He also makes a claim for ongoing nuisance by both John and Sherri Wheeldon. He described in his Notice of Claim and Reply, and in his evidence, that the Wheeldons repeatedly walked or trespassed onto his property, took video of him, and called bylaw enforcement. (On the issue of calling bylaw enforcement, both parties claimed that the other making such reports to authorities was a nuisance. Such calls are not, in law, a nuisance, so I will not address those claims any further.) He originally brought a claim for harassment, but that is not a cause of action in Canada. I allowed him to amend his pleadings at the start of the trial when it became clear he was claiming an ongoing trespass in the form of a concrete retaining wall that is partially on his property.

[2]           Mr. and Mrs. Wheeldon brought a counterclaim against Mr. Pellegrin for a series of actions by him. While their counterclaim refers to his acts as private nuisances, it is clear from the evidence that their claims, similar to those of Mr. Pellegrin, are covered by the law of nuisance and trespass.

[3]           Mr. Pellegrin filed his Notice of Claim on April 21, 2017. The Wheeldons filed their initial Reply and Counterclaim on May 9, 2017. Mr. Pellegrin filed a Reply to the Counterclaim on May 24, 2017. The Wheeldons filed an amended Reply and Counterclaim on November 16, 2017. Mr. Pellegrin filed an amended Reply to the Counterclaim on December 1, 2017.

[4]           The original filing dates of April 21, 2017 and May 9, 2017 are important, because several of the acts that form the basis of the claims occurred outside the two-year limitation period set by the BC Limitation Act. An exception is Mr. Pellegrin’s claim for the ongoing trespass of the retaining wall: since it remains a trespass, it is actionable as long as it remains on his property.

[5]           Since all parties are self-represented, I have considered the law that is applicable to their claims, whether in trespass or nuisance, so that the parties can have a resolution of the past conflicts between them.

[6]           I advised the parties at the outset of the trial that, as a Provincial Court Judge, I do not have jurisdiction to make injunctions, that is, orders requiring one party or the other to take a specific action. Some injunctions that could be made by a Supreme Court Judge would be, for example, to order the Wheeldons to remove the retaining wall, or to order Mr. Pellegrin not to further damage the retaining wall. For the benefit of both parties, I will also explain how the BC Property Law Act applies to the issue of the retaining wall, but only a Supreme Court Judge could make a ruling pursuant to that Act. As a Provincial Court Judge, I can only order damages, meaning money, to compensate one party for the actions of the other.

[7]           Mr. Pellegrin lives with his wife and children in Campbell River. Mr. and Mrs. Wheeldon live next door. Their son, Joel Wheeldon, lived with them during some of the events that form the basis of the competing claims.

[8]           For several years, the Pellegrins and the Wheeldons got along fine. For example, in 2008, the Wheeldons were landscaping their property. They offered the Pellegrins a load of fill for their property which Mr. Pellegrin accepted. Mr. Wheeldon spread the fill on the Pellegrin property to contour the slope of their back yard. As well, Mr. Wheeldon testified that prior to 2014, he regularly cut the weeds on the back part of the Pellegrin property.

[9]           The Wheeldons have built what they describe as their dream home on their property. In 2008, they built a sports court at the back of their lot. In doing so, they built a concrete retaining wall between their property and the Pellegrins’. Unfortunately, due to a miscalculation of the property line, and the fact the concrete spread, part of the wall ended up on the Pellegrin property. The error was inadvertent, not intentional.

[10]        The retaining wall is approximately 31 feet long. It runs north to south between the two yards. The wall is 6 inches wide. The wall, before it was damaged by Mr. Pellegrin, was 10 to 12 inches above the ground on the Pellegrin side. It was approximately five feet high from where it sits in the ground. The wall is not exactly parallel between the two yards: it runs at an angle. It protrudes more onto the Pellegrin property towards the south (front of the property). At the north end (back of the property), it is not on the Pellegrin yard. The wall protrudes onto the Pellegrin property between zero inches and 7.5 inches. At the north end, approximately two to four feet of the wall is not on the Pellegrin property. At the south end, approximately six feet of the wall is entirely on the Pellegrin property.

[11]        There was some dispute about exactly how far the wall was onto the Pellegrin property. I accept the testimony of Mr. Wheeldon on this point. He testified that he took careful measurements to ensure the accuracy of his evidence. The Wheeldons also provided a survey showing the maximum encroachment to be .19 metres, which is 7.48 inches. In any event, the Wheeldons admit that part of the wall is on the Pellegrin property, and that Mr. Wheeldon was responsible for placing it there.

[12]        The retaining wall houses a sports court on the Wheeldon side. There is a basketball hoop just inside the court next to the wall. Joel Wheeldon testified that he played hockey in the sports court. In August 2010, the Wheeldons put up an approximately 10 foot high green mesh fence on top of the retaining wall, presumably to keep balls from going onto the Pellegrin property.

[13]        Interestingly, Mr. Pellegrin testified that, despite it being on his land, the retaining wall was to his benefit. It effectively shored up his yard, which is higher than the Wheeldons’ property. It is also apparent, from pictures and video, that the part of the Pellegrin property adjacent to the retaining wall is at some distance from the Pellegrins’ house. The property at that point is sloped. There is a large tree there, but it is otherwise covered in grass. There is no structure there. In short, it is a part of the Pellegrin property that is far from their house, and is not used for any particular purpose. Both the Wheeldon and Pellegrin lots are approximately a third of an acre.

[14]        While the wall is the primary source of dispute between the parties, each also claims that the other has committed various trespasses or nuisances towards the other.

[15]        I heard a considerable amount of background facts which pre-date the claims that fall within the two-year limitation period. I will not repeat all of the evidence. However, some of it provides helpful context to the ongoing dispute between the parties.

[16]        The evidence of both the Pellegrins and the Wheeldons establishes that whatever cordial relationship they may once have had broke down in 2013 to 2014. The situation escalated when, on April 26, 2014, Mr. Pellegrin dumped approximately 20 pounds of dog feces on the Pellegrin/Wheeldon property line. Mr. Pellegrin believed the dog feces was on his side of the line, but, in fact, it was not. Regardless, he testified that he put the feces there as a message to the Wheeldons to stay off his property. His perception was that the Wheeldons were frequently on his side of the property line, doing landscaping, or yard maintenance.

[17]        Mr. Pellegrin and his family members also testified that they believed the Wheeldons had regularly put garbage in the Pellegrins’ driveway, and that the Wheeldons once put a dead snake on the Pellegrins’ trampoline. No one testified that they saw the Wheeldons do these things. The dates of these events were not specified, and there was no evidence to support that the Wheeldons had anything to do with either the garbage or the snake.

[18]        The dumping of the dog feces was prior to the two-year limitation period, so the Wheeldons are not entitled to damages for that act. However, given the history between the parties, I will add at this juncture that had this action been within the limitation period, I would have awarded damages in favour of the Wheeldons. The case law is clear: having noxious smelling substances on one’s property which affect a neighbour’s use and enjoyment of their property, is an actionable nuisance. The noxious substance can be entirely on the property of the offending party, but if the smell carries over to the neighbour, the offender will be liable to pay damages. The same is true for excessive noise, or lights. The point is, if a person does something on his or her land that impedes the neighbour’s use or enjoyment of his or her land, there may be an action in nuisance.

[19]        The Wheeldons, upon seeing the dog feces, asked Mr. Pellegrin to clean it up. He denied dumping it and refused to clean it up. The Wheeldons contacted the City of Campbell River to see if there was anything the city could do to assist them. Mr. Wheeldon testified that the bylaw officer they spoke to said there was nothing they could do about the dog feces. However, upon viewing pictures of Mr. Pellegrin’s front yard, the bylaw officer said he could issue a citation for an unsightly yard. He did so, and Mr. Pellegrin had to clean up his front yard. The bylaw officer also suggested the Wheeldons contact Campbell River Animal Control about the feces.

[20]        In early May 2014, the Wheeldons contacted Animal Control which resulted in an officer contacting the Pellegrins about their dog, and requiring them to licence it.

[21]        In response, on May 8, 2014, Mr. Pellegrin reported to the City of Campbell River that the Wheeldons’ green mesh fence on the retaining wall was over-height. The Wheeldons ultimately obtained a variance from the city to allow them to have an over-height fence on September 29, 2014.

[22]        In mid-May to June 2014, Mr. Wheeldon decided to build a fence on the south end of the line between the Pellegrin and Wheeldon property. He put string lines and stakes in the ground to prepare for lining up the fence. Mr. Pellegrin ripped out the lines and stakes at least two times prior to the fence being completed. On one such occasion, June 1, 2014, Mr. Wheeldon reported the incident to the police, because his stakes and hammer were missing. The police spoke to Mr. Pellegrin. No charges resulted.

[23]        On June 2, 2014, Mr. Pellegrin and Joe, a friend who worked for a surveying company, were on the property line. Mrs. Wheeldon and Joel Wheeldon approached them. Mrs. Wheeldon handed Joe a copy of a 2007 survey they obtained of the property line. Mr. Pellegrin took the survey from Joe, crumpled it up, and threw it on the ground. Mrs. Wheeldon testified that Mr. Pellegrin grabbed his crotch and said to her: Suck it, it’s waiting for you. Joel Wheeldon testified that he heard Mr. Pellegrin say “Suck it”, and he saw him grab his crotch. Mr. Pellegrin denied grabbing his crotch, but agreed he said “Suck it.”

[24]        I accept the evidence of the Wheeldons on this point. It is important because Mrs. Wheeldon testified that this was the first in a series of lewd gestures and comments that Mr. Pellegrin made to her in the subsequent years. She made notes about the incident, and started recording subsequent comments and actions in a notebook. Those gestures and comments form the basis of one of the Wheeldons’ claims of nuisance.

[25]        On June 9, 2014, Mr. Pellegrin gave a hand-written letter to Mr. Wheeldon telling him, in part, that the retaining wall was on his property, and that he had the right to remove it. The letter was rude in tone, accusing Mr. Wheeldon of “petty harassment”.

[26]        On June 10, 2014, the Wheeldons sent a letter to Mr. Pellegrin via their lawyer. The letter explained that Mr. Wheeldon intended to build a fence, which he would pay for, to minimize further disputes. It stated that Mr. Wheeldon had hired a professional surveyor to ensure his fence was entirely on the Wheeldon property. The letter further advised that the Wheeldons planned to purchase surveillance equipment which would record video and images of the Wheeldon property alone. The letter was formal, but not unfriendly in tone.

[27]        On June 12, 2014, Mr. Wheeldon delivered a hand-written letter to Mr. Pellegrin advising that a survey would be done that coming Friday. He asked Mr. Pellegrin if he would pay for half the cost. He again told Mr. Pellegrin he planned to build a fence. He asked for his string lines and stakes to be returned. He asked Mr. Pellegrin to withdraw his complaint to the City about the over-height green fence. He acknowledged that he had gone onto the Pellegrin property in the past to cut weeds on the Pellegrin property, and suggested this might be the root cause of the disagreement. He acknowledged that the retaining wall and green fence were at least in part on the Pellegrin property, and that this was from his own “poor planning”. The letter was polite in tone.

[28]        On June 13, 2014, the Wheeldons obtained a second survey of the property line. It was after obtaining this second survey that the Wheeldons learned exactly how far the retaining wall was on the Pellegrin property.

[29]        On August 10, 2014, Mr. Wheeldon delivered a hand-written letter to Mr. Pellegrin. He told Mr. Pellegrin he had chalked the top of the retaining wall and invited him to propose a solution. Mr. Wheeldon wrote that if he obtained approval, he would move the green fence to his side of the wall. (Mr. Pellegrin and Mr. Wheeldon had previously verbally agreed the green fence could be moved to the Wheeldon side.) Mr. Wheeldon estimated the retaining wall was 40% on the Wheeldon property and 60% on the Pellegrin property. Mr. Wheeldon pointed out that a different retaining wall, at the south end of the property line, which encloses the Pellegrins’ front yard and driveway, was, in fact, entirely on the Wheeldon property. This southern retaining wall had been in place before the Wheeldons moved in. Mr. Wheeldon said he was fine with the southern retaining wall being on the Wheeldon property.

[30]        In short, the Wheeldons’ proposal was that both parties keep both the retaining walls where they were, despite the fact they both were over the respective property lines.

[31]        Mr. Pellegrin did not reply to the August 10, 2014 letter.

[32]        The above is all factual background that is not within the limitation period of either party’s claim. It forms relevant context for the subsequent events between Mr. Pellegrin and the Wheeldons. I will deal with the remaining claims that fall within the two-year limitation period, under separate headings. Then I will assess what, if any, damages are payable by one party to the other.

[33]        Mr. Pellegrin testified that on May 26, 2015, Mr. Wheeldon assaulted him by either throwing a rock at him, or lifting it towards him in a threatening manner. Mr. Pellegrin testified that he was afraid of being hit with the rock.

[34]        The incident arose when Mr. Pellegrin was using a weed eater to cut that portion of his lawn near the retaining wall of the sports court. Mr. Wheeldon wanted to gather evidence of Mr. Pellegrin deliberately spraying his sports court with debris from the weed eater. Mr. Wheeldon felt justified in video-recording Mr. Pellegrin because a police officer had told him to gather such evidence to support his claims of wrong-doing by Mr. Pellegrin.

[35]        At this stage of their relationship, both parties had called city agencies and the police about the other. Their relationship had completely broken down to the point Mr. Pellegrin and Mr. Wheeldon actively disliked each other.

[36]        Mr. Wheeldon stood on the retaining wall and video-recorded Mr. Pellegrin weed eating. He was in a somewhat precarious position balanced on the wall. Mr. Pellegrin advanced towards Mr. Wheeldon. Mr. Wheeldon stopped recording because, he testified, he felt threatened by Mr. Pellegrin approaching him with a running weed eater. He testified he picked up a rock in his hand because he was afraid Mr. Pellegrin was going to assault him with the weed eater. Mr. Pellegrin ultimately walked away, and Mr. Wheeldon dropped the rock to the ground.

[37]        Mrs. Wheeldon was present for the incident, but did not observe the entire transaction. She testified that just prior to the incident, Mr. Pellegrin had been walking the south end of the property line next to where she was pulling weeds. As he did so, he was belching and farting, which she believed was done deliberately to annoy her. He also used his weed eater on the southern portion of his lawn, and sprayed the debris on the Wheeldon property. When Mr. Wheeldon came home, she told him about Mr. Pellegrin’s actions, which led to Mr. Wheeldon deciding to video-record Mr. Pellegrin. Mrs. Wheeldon did not see Mr. Wheeldon throw a rock. She saw Mr. Pellegrin walk slowly away from Mr. Wheeldon up the hill.

[38]        I watched the video. At the start, Mr. Wheeldon can be heard referring to Mr. Pellegrin as a “fucking retard”. However, Mr. Pellegrin was some distance away operating a loud weed eater, so he would not have been able to hear the comment. Mr. Pellegrin made several comments towards Mr. Wheeldon, most of which are indiscernible over the noise of the weed eater. However, the theme of the comments is that Mr. Wheeldon does not have a job. At one point Mr. Pellegrin clearly calls Mr. Wheeldon a “loser”. He cuts weeds while walking away from Mr. Wheeldon, but then walks towards him. He does not appear to be making any threatening gestures at that point, but the video ends while Mr. Pellegrin is still advancing towards Mr. Wheeldon.

[39]        Mr. Pellegrin called the police to report the alleged assault by Mr. Wheeldon. Mr. Wheeldon was arrested. The Crown proceeded with a peace bond pursuant to section 810 of the Criminal Code, but it was stayed on January 14, 2016 before proceeding to a hearing.

[40]        The onus is on Mr. Pellegrin to prove, on a balance of probabilities, that Mr. Wheeldon assaulted him. The following is a helpful summary of the law on what constitutes an assault, contained in the case of E.H. v. N.D.K., 2015 BCPC 413:

[41]        The case of Pollard v. Simon, 2009 BCPC 190 sets out how self-defence applies in a civil claim of assault or battery:

[42]        In this situation, Mr. Wheeldon took a video of Mr. Pellegrin. At the time this occurred, both Mr. Wheeldon and Mr. Pellegrin had a long-standing animosity towards each other. Mr. Wheeldon’s act of recording Mr. Pellegrin, understandably, appears to have had the effect of antagonizing Mr. Pellegrin. However, Mr. Pellegrin was clearly not afraid of Mr. Wheeldon, because he advanced towards him, as can be seen on the video. I accept that Mr. Wheeldon, being in a precarious position on the fence, faced with Mr. Pellegrin and his weed eater, felt threatened. In response, he picked up a rock and held it up towards Mr. Pellegrin, as if he were prepared to throw it. Mr. Pellegrin testified that he was not sure whether or not Mr. Wheeldon threw the rock. I accept Mr. Wheeldon’s testimony that he did not throw the rock. At that point, Mr. Pellegrin walked away, up the hill, towards his house. It can be seen on the video that he did not run or hurry away.

[43]        Mr. Pellegrin advancing on Mr. Wheeldon with a running weed eater caused Mr. Wheeldon, quite reasonably, to fear for his safety. Mr. Wheeldon was, therefore, justified in picking up the rock. He did not throw the rock, and dropped it when Mr. Pellegrin retreated. Mr. Wheeldon’s actions in self-defence were reasonable in the circumstances, and did not constitute an assault.

[44]        Accordingly, I find that Mr. Pellegrin has not proved, on a balance of probabilities, that Mr. Wheeldon assaulted him.

[45]        I will deal with this claim briefly: the testimony of Mr. Pellegrin, Mrs. Kristine Pellegrin, and their son, Franco Pellegrin was not sufficient to establish that the Wheeldons trespassed on their property in any significant way. There is also insufficient evidence of the dates and occasions when the Pellegrins say the Wheeldons were on their property for me to determine which trespasses fell within the applicable two-year limitation period.

[46]        However, it is clear that Mr. Wheeldon walked onto the Pellegrins’ property in order to build a fence which he completed on February 25, 2016. Twice in 2015, he went on the Pellegrin property to clean the retaining wall where Mr. Pellegrin has spray painted it.

[47]        It is also clear from the evidence that on some occasions, Mr. Pellegrin has walked onto the Wheeldons’ property. For example, Mr. Pellegrin can be seen walking onto the Wheeldons’ property after he jackhammered the retaining wall, in order to retrieve something he dropped.

[48]        In short, both parties have occasionally walked onto each others’ properties. Such “trespasses” between the properties were minor.

[49]        Trespass is actionable per se, meaning without proof of damages. Torts actionable per se are entitled to nominal damages but anything more requires proof of actual damages (see Skrypnyk v. Crispin, 2010 BCSC 140, paragraphs 20 to 22). There is authority in British Columbia that nominal damages should be $1.00 (Skrypnyk, paragraphs 23 to 25).

[50]        Accordingly, I award each party nominal damages in the amount of $1.00 against the other, for walking onto each other’s land. I make an order that Mr. Pellegrin must pay $1.00 to the Wheeldons, and Mr. and Mrs. Wheeldon must pay $1.00, total, to Mr. Pellegrin.

[51]        Mr. Pellegrin testified that he believed the Wheeldons’ video surveillance cameras were a breach of his privacy, because the cameras show part of his property line. I have observed the video footage. The angle is set to show the Wheeldons’ property line, and only minimally, or incidentally, observes the Pellegrins’ property. The surveillance cameras do not record sound.

[52]        There is case law that suggests video cameras may be a breach of another’s privacy (Suzuki v. Munroe, 2009 BCSC 1403, Robert v. Assis, 2017 ONSC 1685).

[53]        This is not such a case, because the Wheeldons had a very good reason for installing the cameras: to document Mr. Pellegrin’s continued acts of nuisance and trespass. For example, the video footage showed Mr. Pellegrin jackhammering the retaining wall on December 15, 2015.

[54]        Mr. Pellegrin’s claim under this heading is dismissed.

[55]        It is clear from the evidence that the retaining wall constitutes an ongoing trespass from the time it was built in 2008 to the present. The question is, what is Mr. Pellegrin’s remedy? As already mentioned, I have no jurisdiction to order the Wheeldons to remove the wall, nor can I make orders under the Property Law Act to change the property lines, or grant an easement.

[56]        Mr. Pellegrin took the position that he was entitled to remove the wall. On December 15, 2015, he partially removed the wall with a jackhammer. He estimated he removed 14 inches from the top of the wall. The evidence overall establishes that the wall was originally 10 to 12 inches above the ground on the Pellegrin side.

[57]        Mr. Pellegrin submits that spray painting the word “Remove” on the wall in May and June of 2015 was a form of warning, as was his letter of June 9, 2014. Other than that, Mr. Pellegrin did not warn the Wheeldons that he intended to destroy the wall prior to jackhammering it on the morning of December 15, 2015.

[58]        I heard testimony from Mr. Pellegrin, Mrs. Wheeldon and Joel Wheeldon about the circumstances surrounding removal of the wall. I have also viewed some video of the incident taken from the Wheeldon side of the property. I accept the testimony of Mrs. Wheeldon and Joel Wheeldon, which is consistent with what I observed on the video.

[59]        On the morning of December 15, 2015, Mrs. Wheeldon and Joel Wheeldon were at home. Mrs. Wheeldon saw Mr. Pellegrin, dressed in orange coveralls and a hard hat, standing next to the retaining wall with his jackhammer. She heard him start up the jackhammer, so she ran outside. Mr. Pellegrin started laughing at her. She climbed on the wall to stop him from damaging it. She told him to stop. He told her that her husband should not have thrown a rock at him, and said repeatedly that Mr. Wheeldon was going to spend the night in jail.

[60]        Mrs. Wheeldon called the police. Cst. Kletka, a member of the RCMP, arrived and spoke to both Mr. Pellegrin and Mrs. Wheeldon. Cst. Kletka became upset because Mr. Pellegrin started up his jackhammer in close proximity to her and she said she had just recovered from a concussion. Cst. Kletka told Mrs. Wheeldon it was a civil matter, and left.

[61]        Mr. Pellegrin continued to jackhammer the wall. Joel Wheeldon called a friend to help him take down the green mesh fence, because it was in danger of falling. While he and his friend worked to remove the bolts from the fence, Mr. Pellegrin continued to use his jackhammer. Joel Wheeldon testified that Mr. Pellegrin jackhammered right in their faces. He said at one point, Mr. Pellegrin pushed the fence towards them and if the basketball hoop had not been in the way, it would have fallen on him and his friend. Joel Wheeldon estimated the fence to be 10 feet high and weigh 100 lbs. Joel Wheeldon remembered Mr. Pellegrin laughing like Santa Claus, saying “Ho ho ho. Merry Christmas.”

[62]        Mrs. Wheeldon testified that Mr. Pellegrin taunted her as he jackhammered the wall. He said things like:

[63]        He accused Mrs. Wheeldon of making false sexual harassment allegations, and made a tongue in cheek gesture that he regularly used to simulate oral sex.

[64]        I have reviewed the videos of Mr. Pellegrin taking down the wall. Some video was taken by a hand-held camera, which has sound. I could not hear all of what Mr. Pellegrin or others say, mostly due to the noise of the jackhammer. Mr. Pellegrin can be heard laughing at times while he is jackhammering. Some of the statements I heard from Mr. Pellegrin on the video include:

[65]        There is also surveillance video from the Wheeldon side, which shows the south corner of the sports court bordered by the retaining wall. This video has no sound. Mr. Pellegrin can be seen jackhammering the wall. Joel Wheeldon and his friend are attempting to remove the tall green fence from the retaining wall. Their heads are just above the top of the retaining wall. Mr. Pellegrin is jackhammering at their eye level. Mr. Pellegrin does not stop jackhammering while people are near the fence. At times, he is jackhammering inches from their faces.

[66]        The green fence eventually falls because Mr. Pellegrin jackhammers the concrete beneath it. It falls towards and on top of Mr. Pellegrin. A metal post barely misses him. He then pushes the post and fence towards the Wheeldon side of the property. It is difficult to see whether anyone was endangered by him pushing the fence, but I accept Joel Wheeldon’s evidence that if the basketball hoop had not been in the way, the fence would have fallen on him and his friend.

[67]        Clearly Mr. Pellegrin created a dangerous situation with concrete falling to the ground, jackhammering at the level of people’s faces while they attempted to remove the fence, and causing the fence to fall, first towards himself, and later when he pushed it towards the two boys.

[68]        In removing the top portion of the retaining wall, he damaged not just the parts of the wall on his property, but also on the Wheeldons’ side. Chunks of concrete fell into the Wheeldons’ sports court. The wall is now unsightly. The top is crooked and broken. The rebar inside is exposed. The wall remains in that state.

[69]        The evidence also establishes, quite clearly, that Mr. Pellegrin’s actions were motivated by malice. He testified that the retaining wall benefited him because it shored up his land, which is higher than the Wheeldon property. When I asked him if there was any diminution of his property because of the retaining wall, he replied that there was, because “it’s a busted up wall”. At another point in his testimony, he said he didn’t want to remove the wall because it did them both good.

[70]        In short, this was a vindictive, pointless, dangerous and unlawful act. Mr. Pellegrin’s comments towards Mrs. Wheeldon during the jackhammering make clear his purpose: to get back at the Wheeldons for perceived slights against him by them. It had nothing to do with any negative effect on his property. Quite the contrary: it’s clear from his own testimony that the wall benefited him. Mr. Pellegrin created an unsightly mess, which will be expensive to remedy, for the purpose of removing a maximum 7.5 inch intrusion onto a part of his yard that he does not use for any particular purpose.

[71]        Mr. Pellegrin’s view was that he was entitled to remove the wall because of the ongoing trespass.

[72]        As my review of the law will show, Mr. Pellegrin was wrong. He was not entitled to remove the wall.

[73]        An application of the law of trespass provides a path to the appropriate remedy in this case. I will now outline, with reference to previous court decisions, the law of trespass and nuisance.

[74]        Applying the law to the facts before me, it is clear that the retaining wall erected by Mr. Wheeldon is a trespass on Mr. Pellegrin’s property. It is a continuing trespass. The fact that the Wheeldons did not mean to trespass (i.e., that it was a mistake), is no defence. It is actionable per se, which means that Mr. Pellegrin does not have to prove that he suffered harm or prove damages (i.e., loss). This is in contrast to nuisance, in which one must prove harm or loss that can be quantified in damages (i.e., money).

[75]        Mr. Pellegrin seeks damages for the trespass by the wall. As part of the damages, he seeks reimbursement for his cost to rent the jackhammer, and to pay for a survey dated April 8, 2015, which he paid for in August 2015, to establish the trespass. He testified that he wants the Wheeldons to remove the wall, but since he knows this Court cannot provide that remedy, he believes $5,000.00 would be fair compensation for what he described as “everything I’ve gone through”.

[76]        The flaw in Mr. Pellegrin’s position is that he believed he was entitled to remove the trespassing wall. He was not entitled to remove it. While the law does permit a person to remove a trespass or nuisance in certain circumstances, this is not such a case.

[77]        Watson v. Charlton, 2016 BCSC 664 is a case somewhat similar to this in which Mr. Charlton removed stairs and part of a deck from Mr. Watson’s house, because they encroached on the property on which Mr. Charlton lived with Ms. Bartlett. It was conceded that Mr. Watson’s stairs and deck were a trespass on Ms. Bartlett’s property. Ultimately, the court ruled that the property line should be readjusted to allow for Mr. Watson’s stairs and deck to be rebuilt on that portion of what was originally Ms. Bartlett’s land.

[78]        The court then dealt with the remedy for Mr. Charlton’s actions in trespassing on Mr. Watson’s land to remove the stairs and deck, and also for destroying those structures. The court said the following about Mr. Charlton’s conduct in removing the trespassing structures:

[79]        This statement of the law applies equally to the case before me. Mr. Pellegrin did not provide notice to the Wheeldons that he intended to jackhammer their wall on December 15, 2015. His prior letter and spray painting of the wall do not constitute notice.

[80]        There was no urgency to the situation. The wall caused him no harm. In fact, as he testified, the wall benefited him.

[81]        His jackhammering of the wall was anything but a proportionate response to the trespass. There was nothing approaching “exceptional circumstances” to justify his action.

[82]        To quote the Watson case, Mr. Pellegrin’s “antisocial behaviour was not rational or supported in law.”

[83]        It follows that Mr. Pellegrin is not entitled to compensation for any of the damages he claims.

[84]        As I have stated, Mr. Pellegrin had no right to destroy the retaining wall, and was not justified in doing so in these circumstances. It is true that the wall was a trespass, but there were other remedies available to him, and the Wheeldons, to resolve the issue.

[85]        I do not know what legal advice the parties received in relation to this situation, but the logical remedy would have been for one of them to apply to the BC Supreme Court pursuant to section 36 of the BC Property Law Act. That section permits the court to vary the property line, or impose an easement, and consider compensation. The court in the Watson case considered this legislation. This is not a remedy I can consider in Small Claims court.

[86]        Because Mr. Pellegrin has proven a trespass by the wall, which, as I have stated, is actionable per se, I will award nominal damages. The Wheeldons must pay $1.00, in total, for the trespass by the retaining wall.

[87]        I will now address what damages Mr. Pellegrin must pay to the Wheeldons, for destroying their retaining wall.

[88]        The Wheeldons counterclaimed for the cost to replace the retaining wall that was destroyed by Mr. Pellegrin. I have considered the law of both trespass and nuisance in reaching my conclusion on this aspect of their counterclaim.

[89]        I conclude that since Mr. Pellegrin acted without lawful authority in destroying the wall, the Wheeldons are entitled to compensation for the cost to rebuild the wall. Obviously the new wall should be built so that it is entirely on their own property. In their counterclaim, they seek $6,300.00 for this purpose. As part of Exhibit 65, the Wheeldons provided an estimate in this amount from Hayward Contracting, dated November 6, 2017, which states:

[90]        Mr. Pellegrin did not challenge this estimate. It is an estimate for a wall of the same type and size that Mr. Pellegrin destroyed. It is in 2017 dollars, so, if anything, I expect it is a low estimate. I did not hear any testimony from the Wheeldons about the cost to remove the old wall, or whether the Wheeldons intend to do so. They have made no claim for cost associated with removing the old wall.

[91]        Accordingly, Mr. Pellegrin must pay to the Wheeldons $6,300.00 for the cost of constructing a new retaining wall to replace the old one.

[92]        While the Wheeldons have not specifically claimed general, aggravated or punitive damages, I will consider awards on these bases, because, as I have stated, they are self-represented. It was clear from their pleadings, testimony, and submissions that they considered Mr. Pellegrin’s actions to be high-handed, and that both Mr. and Mrs. Wheeldon suffered emotional distress from Mr. Pellegrins’ actions in destroying the retaining wall.

[93]        General damages are awarded for losses that cannot be quantified by money. In a case such as this, they include compensation for loss of use and enjoyment of property, loss of amenities, aesthetic value, and screening properties of the wall and attached fence.

[94]        For this general summary of the law, I have relied on Skrypnyk v. Crispin, 2010 BCSC 140, starting at paragraph 27. I also rely on the Skrypnyk case, and those referred to in it, to determine the appropriate award for general damages.

[95]        I also rely on the commentary by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, about the difficulty in quantifying general, or non-pecuniary damages:

[96]        The retaining wall has remained in its unsightly state since December 15, 2015. The Wheeldons had to remove the large chunks of concrete that fell onto their sports court. They had to take down their green fence because Mr. Pellegrin removed the retaining wall below it. Since the green fence cannot be supported, the Wheeldons have lost some use of their sports court, and the privacy the fence provided to them. While he is not a party, Joel Wheeldon testified that he lost the enjoyment of using the sports court, because he feared a ball might go onto the Pellegrin property.

[97]        I do not consider these to be minor inconveniences, as was the situation in some of the cases referred to in Skrypnyk.

[98]        There is no evidence that the Wheeldons intended, nor intend to move from their home, but it is obvious that the broken wall would diminish the value of their property. This is a factor sometimes considered under general damages. This factor is more properly dealt with in this case by awarding the cost to replace the wall, which I have done.

[99]        In the circumstances, I award $6,000.00 in general damages for the Wheeldons. I consider this a modest amount, given the duration of time the Wheeldons have had to live with the ugly, broken retaining wall.

[100]     I will now consider whether aggravated and punitive damages are appropriate in addition to general damages.

[101]     The distinction between aggravated and punitive damages was clarified by the BC Court of Appeal in Huff v. Price 1990 CanLII 5402 (BC CA), [1990] B.C.J. No. 2692:

[102]     Both of the Wheeldons were clearly upset by Mr. Pellegrin jackhammering the retaining wall. Mrs. Wheeldon was at home at the time. She asked Mr. Pellegrin to stop. He would not. Instead, he taunted her. Her son, Joel Wheeldon, and his friend, had to work quickly to remove the 10 foot mesh fence in order to avoid damaging it, or possibly injuring someone if it fell. Mr. Pellegrin did not stop jackhammering even as the two boys worked to remove the fence. This was dangerous and insensitive in the extreme. And it must not be forgotten that Mr. Pellegrin admitted that the trespass by the wall caused him no harm, and was, in fact, a benefit in that it shored up his yard in a place he rarely used. It is difficult to imagine more high-handed, unjustified conduct. The language used in the quote above, “harsh, vindictive, reprehensible and malicious”, is fitting.

[103]     It is always difficult to quantify something like aggravated damages. In this case, both of the Wheeldons were understandably upset by the destruction of their property, and the dangerous manner in which it was undertaken. It was the most harsh and sinister of the actions Mr. Pellegrin had taken against them to that point. Certainly Mr. Pellegrin could have foreseen the effect it would have on Mr. and Mrs. Wheeldon. Indeed, his actions and words were calculated not only to damage their property, but also to cause them emotional suffering.

[104]     I balance these factors with the fact there was no ongoing damage to the reputation of the Wheeldons arising from the destruction of the wall, a factor which may form the basis of an award of aggravated damages. I award $1,000.00 in aggravated damages against Mr. Pellegrin.

[105]     I now consider punitive damages. As stated in the Huff case, punitive damages are meant to punish the defendant, and set an example for others who might consider undertaking similar conduct. The law in British Columbia is clear: self-help remedies for a trespass or nuisance do not extend to destroying another person’s property, particularly where there is no urgency to the situation, nor harm to the plaintiff by the trespass or nuisance. People need to be discouraged from similar “bad neighbour” type behaviour. I have already commented on the harsh nature of Mr. Pellegrin’s conduct. He, and others, must be deterred from similar conduct in the future. The amount of punitive damages need not be excessive, but must be sufficient to meet the goal of deterrence. I award $1,000.00 in punitive damages against Mr. Pellegrin for his destruction of the retaining wall.

[106]     I will now address the other nuisances claimed by the Wheeldons against Mr. Pellegrin that fall within the limitation period. Some of these actions should be classified as trespasses, not nuisances. As previously stated, I will apply both the law of nuisance and trespass to the facts before me. Most of the Wheeldons’ claims of nuisance were supported by photographs: spray paint on the retaining wall, the smashed Allen blocks, branches and weed debris on the sports court, snow blown onto their house, and the wheelbarrow with the word “coward” on it.

[107]     The first incident that falls within the limitation period is May 14, 2015, when Mr. Pellegrin sprayed his side of the sports court retaining wall with green paint. He wrote the word “Remove” on his side of the wall. He sprayed a line on the top of the wall. Upon seeing the paint, Mr. Wheeldon knocked on Mr. Pellegrin’s door. Mr. Wheeldon told Mr. Pellegrin not to paint the wall. Mr. Pellegrin told Mr. Wheeldon to leave his property, which he ultimately did. I heard evidence from Mrs. Pellegrin and Franco Pellegrin, their son, about this incident. It was a heated exchange. Franco said he remembered Mr. Pellegrin yelling at Mr. Wheeldon several times to leave.

[108]     Mr. Pellegrin called the police to report Mr. Wheeldon for coming to his door. Mr. Wheeldon reported Mr. Pellegrin to the police for spray painting the wall. Nothing came of either report. Mr. Wheeldon testified that the police told him to record Mr. Pellegrin’s actions that interfered with his property.

[109]     On May 24, 2015, Mr. Wheeldon cleaned up the paint.

[110]     On June 14, 2015, Mr. Pellegrin spray painted the retaining wall again with the word “Remove”. This time he used black paint. Mr. Wheeldon attempted to clean it off, but was unable to do so.

[111]     Both times Mr. Pellegrin painted the wall on his side. There is no claim in nuisance or trespass for Mr. Pellegrin painting his side of the wall. However, some of the paint was on part of the wall on the Wheeldons’ property.

[112]     On May 2, 2016 Mr. Pellegrin smashed two Allen blocks belonging to the Wheeldons that were on the property line. The blocks had been there since July 14, 2008. Mr. Pellegrin had no reason to destroy the blocks other than that he believed he had a right to destroy them because they were on his property. The Wheeldons are not claiming a specific dollar amount for this action, but point it out as an example of Mr. Pellegrin’s unreasonable conduct.

[113]     On December 8, 2016, Mr. Pellegrin hired a tree service to remove several limbs from a tree on his property that was adjacent to the retaining wall. Several large branches fell onto the Wheeldons’ sports court. The Wheeldons cleaned up the branches.

[114]     On December 9, 2016, while using his snow blower to clear his driveway, Mr. Pellegrin shot snow onto Wheeldons’ house, garage door, sidewalk, landscaping plants and cedar hedge. Mr. Pellegrin testified that he did not do this on purpose. Given the clear evidence of his animosity towards the Wheeldons, I do not believe his testimony. He was capable of operating his snow blower so the snow remained on his property. Mr. Wheeldon walked over to Mr. Pellegrin while he was refueling his snow blower. Mr. Wheeldon told Mr. Pellegrin not to blow snow on his property. Mr. Pellegrin testified that Mr. Wheeldon took a swing at him. Mr. Wheeldon denied attempting to hit Mr. Pellegrin. Mr. Pellegrin admitted that he doused Mr. Wheeldon with gasoline. Mr. Pellegrin reported to the police that Mr. Wheeldon attempted to hit him. Nothing came of the incident.

[115]     On May 19, 2017, Mr. Pellegrin directed debris from his weed eater onto the Wheeldons’ sports court. This is a part of the property where there is neither a fence nor shrubs. He did the same thing on July 13, 2017. The Wheeldons provided photographs of the debris. It is not a significant amount of grass, but the distribution of the clippings is consistent with the Wheeldons’ testimony. They did not provide an exact number of times this has occurred, but Mr. Wheeldon testified that Mr. Pellegrin directs his debris onto their property every time he cuts his grass by the sports court. Mr. Pellegrin also dumps his grass clippings on the border between the two yards. In short, this activity has been ongoing for a long time.

[116]     On December 19, 2017, Mr. Wheeldon found a plant in a broken pot near his front driveway. He believed it to be the Pellegrins’ plant. He threw it back on Pellegrin property. Mr. Pellegrin threw it back onto the Wheeldons’ roof. Mr. Wheeldon testified that on the same day, Mr. Pellegrin walked along the border of the property and said to Mr. Wheeldon “I’ve got a surprise for you…” and “no trespassing” while smiling. Mr. Wheeldon testified that Mr. Pellegrin had his hand in his jacket pocket, and appeared to be indicating he had a gun. I watched a surveillance video of this incident, which had no sound. Mr. Pellegrin’s movements do not appear to be threatening, and there is no indication he had a gun. I believe Mr. Pellegrin’s testimony that he did not have a gun. However, I also believe Mr. Wheeldon’s testimony about what Mr. Pellegrin said on that day. Mr. Wheeldon testified that Mr. Pellegrin likes to play mind games. The context is important to this incident: Mr. Pellegrin’s animosity towards the Wheeldons by this point in time is extreme.

[117]     On December 30, 2017, Mr. Pellegrin cut some branches on his property and sawdust flew onto the Wheeldon property. Mr. Wheeldon testified about this incident, in brief, and acknowledged it was trivial. However, it was just one more example of Mr. Pellegrin deliberately directing debris onto the Wheeldon property when he could easily have avoided doing so.

[118]     June 25, 2018 is another date Mr. Wheeldon documented Mr. Pellegrin directing weed eating debris onto the Wheeldon property.

[119]     On September 5, 2018, Mr. Pellegrin placed a wheelbarrow in his backyard, facing the Wheeldon property so it is clearly visible to them. The wheelbarrow has the word “coward” spray painted on it, and it remained there at the time of trial. A picture of the wheelbarrow was marked as an exhibit in evidence. The wheelbarrow is out in the open, on top of a hill. It has clearly been placed there to taunt the Wheeldons, and for no other purpose.

[120]     Mrs. Wheeldon testified about Mr. Pellegrin’s ongoing gestures and comments towards her, which started in June 2, 2014, as outlined above. From that date, Mrs. Wheeldon documented Mr. Pellegrin’s gestures and lewd comments to her. She documented four such gestures or comments which fall outside the limitation period, including the June 2, 2014 event. Between August 2015 and July 5, 2018, she noted 29 incidents where Mr. Pellegrin made lewd gestures or unwelcome comments towards her. She testified that she stopped documenting them after that date because she did not see the point. She testified that he continued to make demeaning comments and lewd gestures including during the time of the trial. By way of example, he told her she is old and ugly, and has more wrinkles than a highway. On one trial date, Mrs. Wheeldon started crying. On a subsequent date, Mr. Pellegrin pulled up his car next to her and mocked her by pretending to cry. He has on several occasions said to her that he cannot believe the Wheeldons had kids. These are just some of the comments. Not all of them occurred while Mrs. Wheeldon was on her property, but many did. Further, Mr. Pellegrin’s words belie his intentions: he wants to cause the Wheeldons distress.

[121]     One gesture Mr. Pellegrin made repeatedly was poking his tongue in his cheek to simulate oral sex. Mr. Pellegrin testified that this gesture was innocuous and said he might have been trying to get something out of his teeth. I do not accept his evidence. I accept Mrs. Wheeldon’s testimony that Mr. Pellegrin has repeatedly made this gesture towards her, and it is deliberate, and sexual in nature. Both Mr. Wheeldon and Joel Wheeldon testified that they have seen Mr. Pellegrin make this gesture as well. Mrs. Wheeldon testified that Mr. Pellegrin will also grab his crotch, put his hand into the crack of his buttocks, and belch and fart as he passes her when she is outside on her property.

[122]     Both Mr. and Mrs. Wheeldon have told Mr. Pellegrin to stop making lewd comments and gestures. Mr. Pellegrin testified that Mr. Wheeldon and Cst. Brindamour told him to stop making lewd gestures to Mrs. Wheeldon.

[123]     Both Mr. and Mrs. Wheeldon testified that Mr. Pellegrin also regularly insults Mr. Wheeldon calling him fat, lard ass, and a pedophile. The Wheeldons entered into evidence an example, which is a video taken by Mr. Wheeldon on July 13, 2017. Mr. Pellegrin is weed eating on his property next to the retaining wall. Grass debris is on the Wheeldons’ side of the wall, in the sports court. Mr. Pellegrin appears to notice Mr. Wheeldon. Mr. Wheeldon walks towards Mr. Pellegrin. Mr. Pellegrin says, “Hey lard ass”, followed by, “You don’t learn do you fat ass? You just don’t fucking learn. You’re about a year and a half into being unemployed, hey stupid?” Mr. Pellegrin laughs, then says, “And you wonder why people call the cops on you. You coward. Throwing rocks at people on their own property. You’re a coward.” Mr. Wheeldon says “Telling more lies, Reno.” Mr. Wheeldon laughs. It is difficult to discern some of what is said because Mr. Wheeldon and Mr. Pellegrin are speaking over top of one another. Mr. Pellegrin walks away calling Mr. Wheeldon a “fat piece of shit”, then laughs. He then says “No wonder the wife fucks around on you.” Mr. Wheeldon laughs and the video ends.

[124]     Certainly Mr. Pellegrin was likely antagonized by being video-recorded on July 13, 2017. However, I accept the evidence of Mr. Wheeldon, Mrs. Wheeldon, and Joel Wheeldon that Mr. Pellegrin regularly uses insulting and demeaning language towards Mr. and Mrs. Wheeldon. Mr. Pellegrin admitted in his testimony that he has used insulting language towards Mr. and Mrs. Wheeldon.

[125]     Mr. Pellegrin testified that the Wheeldons have not always used polite language with him, and I accept that this is true. However, the overwhelming weight of the evidence is that Mr. Pellegrin initiates and consistently uses language and gestures to insult the Wheeldons when they are on their property. His clear intention in doing so is to make them feel uncomfortable, upset, or angry.

[126]     If occasional debris from Mr. Pellegrin’s mowing, snow blowing, or tree-trimming was the only issue between the parties, it might not result in a finding of nuisance, or an award of damages. Some actions are clearly trespasses, but, in other contexts, could be considered minor in nature. However, Mr. Pellegrin clearly undertook these activities to bother the Wheeldons, because of his extreme animosity towards them. His repeated insulting and demeaning language and gestures makes that clear. In particular, Mr. Pellegrin’s comments while he jackhammered the retaining wall leave no room for doubt: Mr. Pellegrin will take steps to annoy and upset the Wheeldons even where a situation benefits him. Mr. Pellegrin wants to interfere with the Wheeldons’ use and enjoyment of their property. That is his ultimate goal.

[127]     The law with respect to these nuisances and trespasses is on the side of the Wheeldons.

[128]     The case of Chiang v. Yang, [1999] B.C.J. No. 966 provides a helpful summary of the underpinnings of the law of nuisance:

[129]     Mr. Pellegrin’s acts of nuisance, and trespass have been ongoing for years. I am mindful that I am only considering the acts within the limitation period, but the history between the parties provides context for what might otherwise seem trivial complaints by the Wheeldons. While the results of some of Mr. Pellegrin’s actions were minor, it is the cumulative effect of his actions which I must consider.

[130]     There was no social utility in littering the Wheeldons’ property with grass, snow, and branches. I accept the Wheeldons’ evidence that these acts were deliberate. All of Mr. Pellegrin’s acts of nuisance and trespass, including, in particular, his lewd and insulting comments and gestures towards the Wheeldons while they were on their property, were calculated to interfere with the Wheeldons’ use and enjoyment of their land, and to cause them emotional distress.

[131]     A somewhat similar situation to the one before me is the case of Aschenbrenner v. Yahemech, 2010 BCSC 905, where the court considered a claim of nuisance by one neighbour against the other. Part of the nuisance alleged was that Mr. Yahemech placed fish offal in two compost bins near the property line, on a hot summer day during the Aschenbrenners’ daughter's graduation party on their back deck. Mr. Yahemech undertook other actions which also constituted a nuisance. The court concluded:

[132]     The same can be said in this case: there is no doubt, from the conduct of Mr. Pellegrin that he intended to “upset, offend, and cause stress” to the Wheeldons by his acts of both trespass and nuisance. His efforts are calculated to interfere with the Wheeldons’ use and enjoyment of their land.

[133]     As outlined above, general damages are awarded for losses that cannot be quantified by money. This includes compensation for loss of use and enjoyment of property. To compensate the Wheeldons for their loss and enjoyment of their land as a result of Mr. Pellegrin’s various listed trespasses and nuisances, independent of the damage to the retaining wall, I order Mr. Pellegrin to pay to the Wheeldons $1,000.00.

[134]     I have already addressed the basis for aggravated and punitive damages under the heading dealing with the destruction of the retaining wall. For reasons similar to those given in that context, aggravated and punitive damages are also appropriate under this heading, in particular for Mr. Pellegrin’s repeated gestures and comments towards Mrs. Wheeldon. I award $1,000.00 in aggravated damages, and $500.00 in punitive damages for the additional nuisances and trespasses by Mr. Pellegrin. These are modest amounts. I hope they will have the effect of deterring Mr. Pellegrin from similar conduct in the future. If not, he could expect these modest awards to increase, should he carry on with his comments, gestures, and other conduct.

[135]     There has been divided success in this case. I will now consider whether either party is entitled to costs pursuant to section 19 of the Small Claims Act, and Rule 20 of the Small Claims Rules.

[136]     Mr. Pellegrin has established an ongoing trespass by the retaining wall, and that Mr. Wheeldon has trespassed onto his property. He was not successful in his claim that Mr. Wheeldon assaulted him. The nominal damages awarded to Mr. Pellegrin amount to $2.00. Mr. Pellegrin was largely unsuccessful in his claims, so I will not order that the Wheeldons pay his filing or service fees.

[137]     The only other expense I have considered awarding to Mr. Pellegrin is the cost of his 2015 survey to determine the property line. However, the evidence establishes that the Wheeldons provided Mr. Pellegrin with a copy of a 2007 survey which he threw to the ground. Mr. Wheeldon then proposed that both parties pay for half the cost of a new survey in 2014. Mr. Pellegrin declined to do so. Accordingly, it is not appropriate for the Wheeldons to bear the cost of Mr. Pellegrin’s 2015 survey.

[138]     The Wheeldons have been successful in their counterclaim against Mr. Pellegrin. The total judgment in their favour is $16,801.00. The Wheeldons are entitled to their filing fees of $206.00.

[139]     The Wheeldons have claimed several other expenses.

[140]     There are many decisions in this court which have considered what constitutes costs, which are, in the words of Rule 20, “reasonable charges or expenses” that “directly relate to the conduct of the proceeding”. Two cases in particular provide guidance on what should and should not be allowed as costs: Sahara Trucking Ltd. v. Abbotsford Truck and Trailer Repair Ltd., 2012 BCPC 246 and Gaudet v. Mair, [1996] B.C.J. No. 2547.

[141]     In the Sahara Trucking case, Judge Skilnick explained the underlying rationale for costs awards in Small Claims court:

[142]     The Wheeldons have claimed the cost of their time, and, in particular days that Mr. Wheeldon has missed work and was not able to receive strike pay because he had to attend court. It is only in rare circumstances that such expenses are allowed, and this is not such a case. The same reasoning applies to the expense of Joel Wheeldon missing work.

[143]     The Wheeldons claimed legal fees in relation to letters sent to Mr. Pellegrin, and preparation for court. Legal fees such as these are not allowable pursuant to section 19(4) of the Small Claims Act.

[144]     The Wheeldons claimed the cost of the 2014 survey to establish the property line. Since Mr. Pellegrin was successful in establishing that the retaining wall was an ongoing trespass, it is not appropriate that he pay for the Wheeldons’ survey.

[145]     The Wheeldons have claimed the cost of installing a video surveillance system covering the property line with Mr. Pellegrin. I am aware of a case where the cost of video surveillance cameras was part of a damages award to claimants who put them up to provide security against a neighbour (Fitzpatrick v. Orwin, 2012 ONSC 3492). The Wheeldons have claimed the cost of the video cameras as costs. In keeping with the general guidelines about costs as set out in the legislation, and the comments of Judge Skilnick in the Sahara Trucking case, I decline to award costs to cover the video surveillance system.

[146]     The Wheeldons have claimed the cost to prepare four large binders of documents for Mr. Pellegrin and the court. Many of the documents and photographs in the binders were marked as exhibits in court. The Wheeldons’ thorough organization of the documents, photographs and videos related to this case was invaluable for the parties, the court, and the witnesses. The Wheeldons are entitled to compensation for the cost of preparation of the binders for court. I have reviewed the receipts provided by the Wheeldons in Exhibit 65 and in pages 122 to 127 of their submissions. It is not possible to determine precisely what some of the items are in the receipts. It appears some of the items are not directly related to preparation for court, for example, pens and a bottle of water. Accordingly, while it is not a precise figure, I will award $800 in costs to the Wheeldons for services and supplies related to preparation of photos, copies, videos, and binders for court.

[147]     In their submissions, the Wheeldons have also asked me to consider imposing any additional penalties on Mr. Pellegrin for which the law provides. Accordingly, I have considered Rule 20(5) which reads as follows:

[148]     As I have already stated, Mr. Pellegrin was partially successful in his claim. In addition, I have already awarded aggravated and punitive damages against him. It would not be appropriate to order a penalty pursuant to Rule 20(5) in this case.

[149]     The BC Court Order Interest Act stipulates that I must order interest at the provincially set rates for any pecuniary (i.e., monetary) judgment as of the date the cause of action arose (i.e., the dates the incidents giving rise to the successful claims took place).

[150]     In summary:

[151]     With respect to interest on the damages related to Mr. Pellegrin’s destruction of the retaining wall, the Wheeldons are entitled to pre-judgment interest on $14,300.00 as of December 15, 2015 (items b-e).

[152]     It is difficult to pinpoint the precise time each of the other nuisances or trespasses was committed by Mr. Pellegrin. His first act of spray painting the retaining wall, on May 14, 2015, fell within the limitation period. The acts continued on from there on various dates, over several years. The Wheeldons are entitled to pre-judgment interest from May 14, 2015 on $2,500.00 (items f-h).

[153]     Pursuant to section 19 of the Small Claims Act, and Rule 20 of the Small Claims Rules, the Wheeldons are also entitled to costs of $800.00, plus their $206.00 filing fee, for a total of $1,006.00. The award of costs is not damages, and parties are not entitled to pre-judgment interest on costs.

[154]     By way of final comment, the parties provided me with their final written submissions in May and June 2020. In those submissions, they referred to additional torts of assault, trespass, and nuisance. I have not considered any of those allegations in these reasons, which are limited to the pleadings filed, and evidence heard at trial.