Judge scolds feuding neighbours, refuses to grant legal remedies

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Wrongful Dismissal0 Comments

Nasty and obnoxious rich people are “also” entitled to their day in court.  If they cannot resolve their differences, the court is there to resolve it if the law provides a civil remedy, so that it does not escalate into criminal harassment or violence.  It is not the duty of the judge to make fun of the litigants, and the cause of the rule of law is not advanced by doing so.  In Morland-Jones v. Taerk, the Superior Court judge was not right to turn the litigants away in a derisive manner.  From the perspective of the exercise of the public role of the court in explaining the law and diffusing conflict among citizens, the ruling can be criticized in three significant ways:

  • The public was left guessing the precise relief the plaintiffs were seeking and the applicable procedural law, so as to leave the legal analysis a mystery.
  • The court’s message was that rich professionals in a nice neighbourhood are expected to behave better than people from other neighbourhoods.
  • The manner of the dismissal of the request set up the defendant as triumphant.  Instead of taking measures to calm the tensions, the tone of the judgment polarized the acrimony of the parties for the rest of the law suit.

The case was reported in popular media such as the Globe and Mail, and subsequently in the Law Timesevidently due to the colourful language of the judgment about the parties, who are residents of the affluent Toronto neighbourhood of Forest Hill.  The court was particularly spellbound by the videography of the surroundings:

The parties to this action live across the road from each other in Toronto’s tony Forest Hill neighbourhood. The video footage played at the hearing shows that both families live in stately houses on a well-manicured, picturesque street. They have numerous high end automobiles parked outside their homes.

The neighbours’ disdain for each other had escalated to one using the other’s garbage bins for dog feces, to security cameras trained on each others’ houses, and a host of intimidating behaviour and petty complaints.  The plaintiffs sought an injunction restraining their neighbours from tresspass, harassment and invasion of privacy.  The judge dismissed the application for injunction.  At the heart of the decision, he stated:

In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

Cast as a “rich people should sort out their own squabbles” case, the judge here evidently thought it beneath him to be dealing with it, and that public courts are only for more “serious” disputes or for the less well-off.  Had he exercised his duty more judiciously and considered the evidence and tort law as presented, he may have seen the facts presenting several causes of action which he missed or refused to consider.  My students (both in law school and in grade school) deal with similarly comical examples but they actually manage to flag the legal issues that this judge missed.  Compare this decision to the dissenting opinion of Lord Denning MR in Miller v. Jackson, in which the famous English Court of Appeal judge derided the complainants for not liking the English pastime of cricket.  Were it not for the cricket club’s agreement to pay for damages, Denning would have dismissed the case outright, on the basis that the residents ought to put up with the nuisance.  The majority, however, did find that cricket balls landing in the plaintiffs’ garden were actionable intrusions, based on a more objective legal analysis.

In law, mutual harassment is similar to a hockey punch-up in that the neighbours impliedly consented to each other’s behaviour to a certain extent, so there appears to be a lot of de minimis offsetting behaviour in this case.  However, the lack of equitable jurisdiction of Small Claims Court is the reason why it had to be brought before the Superior Court of Justice, and so in injunction applications it is part of the judge’s day’s work to deal with neighbour disputes.  If the litigants were a divorcing couple making seemingly petty or unreasonable demands of each other, would the court be entitled to treat them so dismissively?  In a judicial system that, as a matter of public policy, abandoned the concept of triage in the 1980’s, is this a reasonable outcome? The fact they were in court meant the bounds of implied consent could have been surpassed.  So let’s deal with it objectively and examine the facts and law.

Without getting into each item of complaint, a couple of actionable wrongs appear in the facts which deserved more scholarly treatment from the judge, a distinguished former University of Toronto law professor and international law practitioner:

  1. He was right to find that there was nothing legally wrong with one neighbour looking at another’s property, but the mutually intrusive cameras ought to have been considered further.  The record showed a prima facie tort of intrusion on seclusion as recognized by our Court of Appeal in the 2012 decision in Jones v. Tsige.  If the tort was found after appropriate judicial consideration, the appropriate remedy would have been to require the parties to train their security cameras away from each other’s houses.
  2. Depositing dog feces in the neighbour’s garbage and taking the dog to urinate on the neighbour’s landscaping were actionable in trespass.  The judge should have ordered that the practice stop, because the law provides a remedy.  If the order is not granted, what is the victim to do to stop this from happening?  Go to the neighbour and punch him on the nose?

In the judge’s haste to ridicule the litigants, the reasons also contain some comments that are really “not PC,” as my kids would say.  How does the judge get away with asserting that (a) it is the job of kindergarten teachers to be “stern” in such circumstances and (b) children, as a group protected against age discrimination under s. 15 of the Canadian Charter of Rights and Freedoms, are presumed to behave like these badly-behaved neighbours?  A less condescending and more judicious handling of the dispute would probably have served to give the parties some clearer boundaries (on pain of a fine or jail time for contempt of court) from which to moderate their future behaviour, and would have provided judicial guidance on emerging tort remedies.  Instead, the ruling on the merits ended with the following pithy statement:

 There is no serious issue to be tried in this action. The Plaintiff’s motion is therefore dismissed.

As a matter of procedure, the disposition was interlocutory in the sense that dismissal of the motion did not stop the action from proceeding.  The parties are free to duke it out at trial.  The judge did not spell it out, but one can infer that the phrase “no serious issue” actually ties into an element of the traditional test for injunctive relief.  In a judgment speaking to the public, this aspect of the decision should also have been clear.  A more methodical explanation of the analysis of the facts and law on a motion for interlocutory relief could have sent the parties away with a more reasoned set of boundaries to observe.  Instead, they were left to continue toward an even more costly (and arguably more wasteful) trial, with all their animosity intact.  The decision may have given the defendant reason to cheer.  Given the nature of the dispute, providing reason for one party to march out of the courtroom in triumph was not the best use of the day in court.

Not a good day for the litigants, not a good day for the rule of law, but a good read for nosey neighbours.

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About the Author

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.

Civil trial and appeal counsel in all levels of Ontario courts, leave applications to the Supreme Court of Canada, and administrative tribunals. Certified by the Law Society of Upper Canada as a Specialist in Civil Litigation. Hearings in English and French. Bio | Contact

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