Executive Summary: Key Legal and Evidentiary Issues

• Central dispute arose over the unauthorized felling of five mature Douglas fir trees on the plaintiff’s property.

• The defense hinged on alleged verbal consent from the plaintiff, which the court found was not credibly established.

• The credibility of both parties was weak, with the court noting inconsistencies and lack of supporting testimony.

• The court accepted arborist evidence in valuing the trees and adjusted damages based on location and context.

• Defendants’ counterclaim for nuisance and negligence failed due to lack of evidence showing substantial interference or property damage.

• No injunction was granted, as the court found no ongoing threat of future trespass and noted the defendants were selling their property.

Facts and outcome of the case

Background and relationship between parties
Shelagh Margaret Prowal, the plaintiff, owns a residential property in Boston Bar, British Columbia. Her neighbors, Sean Kevin Court and Trista Lynn Court, purchased the adjacent lot years later for use as a vacation and potential retirement home. From early on, the relationship between the neighbors was tense and marked by various conflicts, including disputes over water access and child safety concerns.

Events leading to the lawsuit
On October 9, 2021, the defendants hired a faller, Fred Raphael, to cut down five Douglas fir trees that stood on the plaintiff’s property. The defendants claimed they did so with the plaintiff’s consent, allegedly conveyed through a conversation involving a third party, Barry Kvist. The plaintiff, however, denied ever giving consent and maintained that she only learned of the felling weeks later. She subsequently filed a police report and initiated legal proceedings for trespass and conversion.

Plaintiff’s claims and the court’s findings
The plaintiff sought compensatory damages for the unauthorized removal of the trees, citing emotional and aesthetic loss, as well as the irreparable nature of the damage. She also sought punitive damages and a permanent injunction to prevent further trespass. The court determined that the defendants did not meet their burden to prove that the plaintiff had consented. The judge found the defendants’ story to be inconsistent, lacking supporting evidence, and contradictory to their earlier pleadings. The testimony of their hired faller was discounted due to credibility issues and the arborist’s expert report was accepted in full.

The court awarded the plaintiff $19,425 in general damages based on adjusted trunk formula valuation, $2,000 in punitive damages due to the defendants’ reckless conduct, and $1,500 in special damages for survey costs.

Defendants’ counterclaim and court’s rejection
In their counterclaim, the defendants alleged nuisance and negligence, arguing that a retaining wall on the plaintiff’s property had collapsed and threatened their structures. However, the court found no evidence that the wall encroached on the defendants’ land or posed a substantial risk. No rocks had contacted their property, and no expert evidence was provided to support their claims. Moreover, the court noted that any instability might be attributable to the defendants’ own modifications or natural terrain.

Outcome and final orders
Justice Crerar dismissed the counterclaim and held both Sean and Trista Court jointly liable for trespass. While the plaintiff succeeded, the total damages awarded ($22,925) fell within the Provincial Small Claims Court jurisdiction, meaning she was not entitled to legal costs beyond basic disbursements. The request for an injunction was denied, as the court found no real risk of future trespass, especially given that the defendants had listed their property for sale.

In sum, the plaintiff prevailed on all substantive issues, receiving damages but no injunctive relief, while the defendants' counterclaim was rejected in full.