Executive Summary: Key Legal and Evidentiary Issues

• Liability for trespass and nuisance was established against the defendant builder whose excavation work caused the plaintiffs' property to slough and fence to collapse.

• Plaintiffs' repeated refusal to grant the defendant access for remediation work constituted a failure to mitigate damages, significantly limiting their recovery.

• Self-represented plaintiffs cited AI-generated fictional case references in their submissions, resulting in a $200 costs sanction.

• The awarded damages fell within the Provincial Court's Small Claims jurisdiction, triggering Rule 14-1(10) which restricted the plaintiffs to recovering disbursements only.

• Claims for negligence, injunction, certificate of pending litigation, and alleged statutory breaches were dismissed for lack of evidence or inapplicability.

• Survey costs were allowed as a reasonable disbursement to document the boundary and extent of disturbance.

Background and the parties involved

This case arose from a dispute between landowners Jinlu Zou and Huan Yi Zhou (the plaintiffs) and Miracon Development Inc. (the defendant), a builder of residential homes constructing a house on adjacent property in Langley. The plaintiffs represented themselves throughout the proceedings before the Honourable Mr. Justice Blok in the Supreme Court of British Columbia.

Pre-excavation communications and the defendant's offers

In March 2025, Miracon obtained excavation and building permits for its construction project. On May 2, 2025, Ms. Zou telephoned Ron Enns, Miracon's director of operations and customer care, to discuss Miracon's construction plans. Mr. Enns informed her that the planned excavation might affect the stability of the ground along the property line between the two properties. He offered to remove the fence along the property line and replace it with safety fencing, then install a new fence after completing necessary work and remediate any affected portions of the plaintiffs' property at Miracon's sole cost. Ms. Zou thanked Mr. Enns for the call and did not refuse his offer during that call. However, on May 20, 2025, when Mr. Enns emailed Ms. Zou to remind her of the earlier discussion and his proposal, Mr. Zhou replied by objecting to Miracon's plan to remove the existing fence and refused to consent to Miracon entering their property.

The excavation incident and property damage

Excavation work was conducted on the Miracon property on May 21, 2025. Miracon's excavation work took place entirely within the boundaries of its own property; surveyors had placed stakes to mark the excavation boundary. When the excavation cuts began to exceed around four to six feet in depth, some sections of the plaintiffs' property began to degrade and collapse, causing sections of fencing along the property line to become unstable, with some parts collapsing and others in the process of collapsing. Due to imminent safety concerns posed by the collapsing sections of fencing, Miracon workers entered the plaintiffs' property to remove the collapsed and partially collapsed fence sections, placed the removed fence panels safely on the rear of the plaintiffs' property, and constructed bracing on a section of remaining fencing. This was the only time that Miracon personnel entered or conducted work on the plaintiffs' property.

Repeated remediation offers and continued refusal

Following the excavation, Miracon engaged a geotechnical engineer to conduct a safe entry inspection. The engineer recommended that Miracon install plastic sheeting over exposed side areas and extend the existing downspouts of the plaintiffs' house to the bottom of the excavated area. Email correspondence between Miracon and the plaintiffs continued from May 21 to May 26, with the plaintiffs communicating their complaints about the excavation and Miracon repeating its offer to fully remediate their property in exchange for access. On both May 23 and May 26, Mr. Enns asked for access to the plaintiffs' property so that Miracon could implement the recommendations of the geotechnical engineer. The plaintiffs continued to refuse access to their property. On May 29, following a rainfall, further degradation occurred along the property line in an area which, due to the plaintiffs' refusal to allow Miracon on their property, Miracon had been unable to cover with plastic sheeting or extend the downspout. On June 12, the geotechnical engineer recommended an alternative method using concrete lock-blocks along the side adjacent to the plaintiffs' property. On June 16, concrete lock-blocks were installed. On June 18, Miracon filled in portions of the degraded property using gravel as fill, using a gravel slinger so that no Miracon worker would have to set foot on the plaintiffs' property. On July 10, Miracon again used a slinger to backfill gravel and sand along all the affected property line area. In July 2025, Miracon obtained from a professional landscaper a quote totalling $4,200 (including GST) for the remediation of the plaintiffs' side property, covering the supply and installation of new and existing fence panels with new posts in concrete footings, and the supply and installation of gravel to meet the grade and match the existing gravel.

The plaintiffs' claims and the defendant's response

The plaintiffs brought claims in trespass, negligence, nuisance and alleged breaches of the Occupiers Liability Act, the Builders Lien Act, the Community Charter, and the Local Government Act. They sought general damages, special damages, an injunction, and a declaration that they were entitled to file a certificate of pending litigation against the Miracon property. The damages they sought were in the range of $39,600, excluding items that would fall under costs, although they also sought additional damages in an unascertained amount for the placement of allegedly substandard backfill. The plaintiffs acknowledged that Miracon asked for access to their property in order to remediate the area, but stated they refused access because "the proposed measures were inadequate to restore my Property and would have interfered with my land further." Miracon submitted that the plaintiffs' action should be dismissed or, alternatively, that judgment be granted in only a nominal amount or, further alternatively, in the amount of $4,200.

The court's findings on liability and damages

Justice Blok determined the matter was suitable for summary trial, finding that the essential facts were not in dispute, the case was not complex, the amount involved was relatively small, and the cost of taking the matter to a conventional trial would be disproportionate to the amount at issue. The Court found the plaintiffs established trespass, as Miracon's employees entered their property to stabilize the remaining fence, remove unstable fence panels, and block access to the affected area with a particleboard panel. The Court found this trespass was both brief and minor and warranted only a nominal or very modest award of $100. The Court also found the plaintiffs established their claim in nuisance, as Miracon carried out works on its own property that resulted in loss of lateral support and physical damage to the plaintiffs' property. The measure of damages for rebuilding the fence and restoring the strip of property was assessed at $4,200, based on the landscaper's quote. The Court concluded the plaintiffs should also be compensated $500 for the limited and modest inconvenience of not being able to access the narrow strip on the side of their house. However, the Court found the plaintiffs failed to mitigate their damages by refusing Miracon's offers to remediate, and limited the period of compensable inconvenience to six weeks, as any inconvenience after that time was due to the plaintiffs' failure to mitigate. Claims for negligence, statutory breaches, certificate of pending litigation, and injunction were dismissed.

The AI-generated cases issue

During submissions, the plaintiffs cited six case authorities which they said endorsed their approach to assessing damages in trespass cases. In written submissions, Miracon stated that although the plaintiffs' six case references came with plausible-looking names and citations, the cases do not exist and appear to be hallucinations generated by artificial intelligence. In their reply submissions, the plaintiffs did not deny that their cited cases were AI-generated. The Court accepted that the plaintiffs' references to AI-generated cases, which were shown to be AI "hallucinations", stemmed from AI ignorance and legal unfamiliarity rather than as a deliberate attempt to mislead. Following the precedent in J.R.V. v. N.L.V., 2025 BCSC 1137, where the Court awarded costs of $200 against a self-represented litigant who was unaware that generative AI might well provide non-existent case citations, the Court imposed a $200 costs sanction against the plaintiffs.

The costs decision and final outcome

In a subsequent judgment on costs dated January 20, 2026, the Court found the plaintiffs were substantially successful in the litigation, having established liability in both trespass and nuisance and been awarded damages. However, the Court applied Rule 14-1(10), which provides that a plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court. The plaintiffs argued they were justified in bringing the action in Supreme Court because injunctive relief remained a live and reasonable concern at the time they filed their notice of civil claim. The Court disagreed, finding that at the time of filing, excavation work was complete and the area was being backfilled, and there was no reasonable prospect that injunctive relief might be engaged or that damages would exceed the small claims limit. The Court allowed the plaintiffs' survey costs as a disbursement, finding it was reasonable for the plaintiffs to determine whether the excavation work had taken place beyond the property line. The total damages awarded to the plaintiffs were $4,800. The final result was that the defendant will pay the plaintiffs' disbursements, including the cost of the survey, either as agreed or as assessed by the registrar, less $200.