Judge NS loses tree damage case in small claims court

A small claims judge adjudicator in Nova Scotia has dismissed the case a Truro judge and his wife brought to their neighbor about a tree that fell during post-tropical storm Fiona.

Jill Linquist and her husband, Nova Scotia Provincial Court Judge Al Bégin, sued neighbor Sheila Lynds for damage caused by the poplar tree to their fence.

“Good fences make good neighbors and for 14 years the parties were, by all accounts, good neighbors,” said juror Julien S. Matte in a written decision released Wednesday.

“Things began to change in September 2022 when an unwelcome intruder knocked over the defendant’s tree and slammed into the plaintiff’s fence, causing the damage now claimed. The Intruder. . . wreaked havoc throughout Nova Scotia and the parties are now asking this court to determine whether the defendant or ultimately Fiona is responsible for that damage.

Surrounded by fence

Both sides agreed that the poplar in question once stood on a corner of Lynds’ property.

“The tree was surrounded by a fence that the parties agree belongs to the plaintiffs,” Matte said.

“The parties also agree that on September 24, 2022, a (storm) named Fiona passed through the area, causing high winds to uproot the defendant’s poplar on the plaintiffs’ fence.”

The judge and his wife were trying to recoup the $2,415 they said would be necessary to repair nine feet of galvanized fencing that was about seven feet high.

‘Sufficient warning to act’

Bégin, who represented himself and his wife in the case, suggested “that his actions in the years leading up to Fiona (Lynds) gave enough time to act to prevent the poplar damage to his fence,” the referee said.

“While (Lynds) says she was under no obligation to remove a healthy tree from her property and that the ultimate cause . . . could not have been foreseen.”

Bégin testified that he had spoken to Lynds’ now-deceased husband twice about his concern over the possibility of the tree falling over. By 2022, the judge was “so concerned about the possibility of the tree falling on his property that he hired an arborist at his expense to prune overhanging branches above his property at a cost of $1,100 plus tax. No claim is made for this amount.”

‘related to weeds’

Bégin believed that poplars are “related to weeds and more prone to falling over,” according to the small claims court ruling.

“On cross-examination, (Bégin) noted that he had lived on his property for 14 years and had numerous conversations with (Lynds’) husband during that time before passing away in 2019.”

Bégin told the court he had two conversations with Lynds’ husband about the poplar “but admitted he never spoke directly about it” to Sheila Lynds.

Her son testified that his parents had lived on their property for 67 years and that he had had more than 30 conversations with Bégin over the years.

No tree talk

“He further testified that none of the conversations he had with (Bégin) had to do with the boundary line of the trees or the poplar and confirmed that there were no neighbor disputes between” his parents and the neighbours.

The son also told the court that he cleaned up the 28-year-old tree, which was about 35 centimeters in diameter, after it fell.

“He found no rot, healthy leaves and that the tree had been pulled out by the roots. Based on his observations, he concluded that the tree was not diseased.”

Lynds testified that she felled a tree near another property she was selling after the buyer requested it “because she didn’t want the tree to blow down on the new owners’ house.”

Both sides “offered opinions on poplars,” Matte said.

Bégin insisted that poplars are weeds “notorious for falling over”.

No experts called

Lynds’ opinion was that ‘many poplars survived. . . Fiona and stuff. . . the tree was not sick,” said the juror.

“Neither side called an expert to support their opinion.”

Bégin also “opined that hurricanes in this region are common enough that such events are foreseeable.”

He argued that Lynds should be held liable because “the poplar was a known danger”.

But without any expert evidence to back that up, the umpire said the judge’s opinion “can be given little weight”.

Lynds said Bégin never spoke to her about the poplar.

‘No evidence of rot’

“The defendant’s son has also testified that the plaintiffs never spoke to him about the poplar. He further testified that when he cleaned up the fallen tree, he noticed that it had apparently healthy green leaves, no signs of rot, and that it had been uprooted by the hurricane winds instead of snapped.

Most major storms cut down or uproot trees, the jury said.

“However, liability for damage caused by falling trees is not automatic; there must be a known hazard that gives rise to an obligation to act to mitigate the hazard. Whether the event is foreseeable is an objective test.”

Bégin did not provide any evidence that the poplar was diseased, prone to breaking its branches or bending in the wind.

“In the 14 years that the plaintiffs lived next to the tree, they have not reported any branches falling on their property,” Matte said.

‘No clue’

Bégin did not dispute the description of the poplar as healthy.

“Furthermore, given the estimated age of 28 years and taking into account the plaintiff’s claim that (severe storms) are a regular occurrence, it is likely that the poplar has survived previous storms without toppling over,” the umpire said.

“There was no indication that the poplar posed a threat.”

Bégin failed to prove that Lynds “knew or should have known that the poplar was a known threat,” Matte said.

“In other words, it was unforeseeable that the poplar against . . . Fiona neither could it be foreseen that other trees would remain on the defendant’s property.”