A woman with a vacation home on B.C.’s Shuswap Lake has been awarded $35,000 after a provincial court found her neighbours cut several trees on her property without permission—in an effort to “improve their view.” Jacalyn Hays said the tops of five western red cedars and a weeping willow around the home were removed during the summer of 2022, and that a mature paper birch tree approximately 15 metres tall was felled. Hays testified that left her property exposed to direct sunlight for much of the day, increasing the temperature both inside and outside. “The property is her holiday residence, which she typically lives in during the summer months of June, July and August,” Judge George Leven wrote in a decision this month. “She described the area as having once been a ‘shaded oasis,’ but says it has become unbearable.” Hays sued her neighbours for trespass in small claims court, and Leven found them liable for the maximum allowable damages. Dispute over consent The suit was filed against Alan Fenton, Elizabeth Fenton, Lee Fenton, Cheryl Fenton, Shelly Fenton and William Olthius, who own a home situated above Hays’ lot. The court heard Alan Fenton approached Hays in July 2021 and asked for permission to trim or top trees on the hillside of her property to improve the defandants’ view of Shuswap Lake—and that she agreed, with conditions. “The claimant says she gave express but limited permission to top only small saplings near the top of the hillside, close to the defendants’ property line, provided they were no more than three inches in diameter and were topped to no less than six or seven feet in height,” Leven’s decision reads. “She also instructed Alan Fenton to remove any trimming debris because it posed a fire hazard.” Hays testified she was dismayed to return the following summer and see several trees topped by as much as 12 metres, and that an entire downed birch had been left on her property. The defendants said Alan Fenton—who was in his 80s, and has died since the suit was filed—told them Hays had given them permission to top any trees they wanted, and that they hired a tree cutter to do so in July 2022. Leven accepted the neighbours believed they had consent, but found that did not absolve them of liability. Second-hand permission The defendants described Alan Fenton as truthful and honest, and testified they had no reason to doubt he had obtained permission from Hays to cut her trees. Since that work didn’t begin until nearly a year after that conversation, however, Leven found it was incumbent on them to at least make a courtesy call to their neighbour before beginning. “Given this significant passage of time, some inquiries were warranted to determine whether any previous consent still existed or, for that matter, whether Ms. Hays was still even the person responsible for making decisions about the property,” the decision reads. The judge also accepted into evidence a confrontation between Hays and Alan Fenton that she had apparently recorded without his knowledge—in which he admitted there had been a “f*** up” and that he had to “take responsibility.” “From that recording, I conclude that the claimant was extremely upset over the events and the defendant Alan Fenton was apologetic and acknowledged, at the very least, that he and the other defendants had made a serious mistake and were in the wrong,” Leven ruled. “I find each of the defendants liable in trespass.” Hays claimed compensatory damages for the purchase and installation of a shade structure for her vacation home, two air conditioning units, replacement trees and a geotechnical report to assess the stability of the slope behind her home in the event that one of the topped trees should die, among other expenses. While the defendants suggested a number of less expensive solutions, including cheaper AC units, Leven found Hays’ solutions were not “excessive or unreasonable,” and awarded her $34,064 in economic damages. He also awarded her non-economic damages for loss of enjoyment of her home, bringing the total award to $35,000.
