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#19046
M.P.P.’s COTTAGE OUTHOUSE NIGHTMARE : Has ONCA put the lid down for good ? Armstrong v. Moore 2020/02/15 13:05  
Again not legal advice.

And although this bizarre property war is technically neither condominium nor genuine Building Scheme, it's a cautionary tale of daring to challenge the Romans after moving into Rome. Until really understanding one's newly chosen fellow owners & getting enough comfort zones mutually into place, a Twilight Zone might get entered if even minor conflict arises . . . That isn't necessarily the full story here, of course.

The Provincial NDP M.P.P. for London-Fanshawe TERESA JESUS ARMSTRONG and her husband have failed to persuade ONCA Ontario's Court of Appeal to overturn a 2018 Superior Court decision issued after SEVEN ( 7 ) DAYS OF HEARINGS !

( That 2018 decision had awarded them merely nominal damages for damage to a ( squatting ) outhouse. They appealed seeking increased damage awards. )

Far away from London Ontario & deep in the heart of Tory Ontario, their $ 38 K cottage in 2003 came with an outhouse & shed held-squatting on a private shared-ownership lakeside road.

BUT just over three years later the squatting structures were damaged by a 2007 mudslide caused by a neighbour's improper landcaping.

After the Londoners in 2009 sued for $ 250 K ( ! ! ) they next found themselves in a dispute with a number of other "dominant tenement" road co-owners.

AND ALSO with the servient tenement owner of the underlaying road itself ( a successor to the 1950's developer who had turned waterfront into lots including only 40 feet wide ! ! ).

It is unclear what settlement efforts were even attempted instead of beginning what has become ELEVEN YEARS of litigation ! ( Yes, it's Crazytown ).

Such arguably at this otherwise peaceful waterfront could have restored mutual respect for all parties at minimal cost & in compliance with property boundaries & municipal law.

Instead the outhouse owners also began to claim - by "adverse possession" - FULL ownership of a critical right-angled turn portion of the common private road. A simple chattel damage claim thus morphed into an ownership claim.

They also arguably believed that in lieu of merely & quietly relocating the outhouse one more time & now back within their lawful property line, the local municipality would not even allow one of the modern outhouse replacements like a modern eco-toilet. ( My wife and I briefly owned a waterfront lot with one such in a credible metal pavillion. ) Testimony in Armstrong v Moore 2018 from the CBO municipal building officer hinted that such would have been approved . . .

( Incidentally both courts justify rejecting the (underlaid) land ownership claim NOT because the structures lacked foundations. ONCA holds they got held placed with permission - permission kills the claim - and the claimant now fails a critical part of the test requiring to establish the predecessors pre-conversion INTENDED to exclude the owners of record AND effectively further excluded such. )

The destruction of the outhouse & shed Aug 2007 to 201? ( unknown date & details )

Needless to say the litigation did not make the other road co-owners - ie the dominant tenement & servient tenement owners - dance for joy. The outhouse & attached shed were ultimately obliterated by persons undisclosed . . .

Holding the servient owner(s) somehow liable for incitement or exacerbation

At some time before or concurrent with the destruction the servient tenement owner Moore(s) had the roadway boundaries re-surveyed, erected signage warning of the litigation, and removed certain cedars surrounding the outhouse.

WHY only the servient tenement owner(s)got hit for the post-mudslide damage, I will be trying to clarify below.

For example is there some sorta tort in Ontario like incitement of other arms-length adults to damage by exacerbation or posting alerts or by whatever ?

Could it be like purely narrative neutral comments to condo or Building Scheme owners at an Owners Meeting ? Or neutral descriptive narrative in disclosurable Board Minutes ?

Whatever, it may not be an explanation that will make governancers happy. But here the penalty was only $ 8 K albeit to accompany many thousands of dollars in legal bills so far. Plus 11 years of torment.

Governancers elsewhere should note that the damages claimed were massively inflated by the claimants ( A 40 year old wooden outhouse & shed to shift back within property lines or replace with modern eco-toilet & pavillion, likely with CBO blessing ).

Imagine if there REALLY had been SUBSTANTIAL well-established loss proven/provable instead largely of lots of rancour & frustration !

Summary :

A caption for the 2007-Jan 2020 litigation could have been :

some unlucky / some careless / whether any critical upfront failure to try to resolve cheap with everyone bettered – but not even discussed / a whole lot of stubborn instead of making a deal / arguable self-help remedies next dispersed between a group of private roaders / ultimately hundreds of thousands of dollars possibly incurred by EACH litigant group for more than a decade of litigation instead of enjoying the waterfront . . . .

1 - NDP M.P.P. Teresa Jesus Armstrong ( London-Fanshawe ) at Feb 7/20 is shown as “Chief Opposition Whip & Critic, Home Care and Long Term Care”

Someday will a change of government have more to say about the legacy of informal backwoods subdividing locally approved willy-nilly in the 1950s ? . . .

2 - Her husband WILLIAM JOHN ARMSTRONG reportedly had been London (Ontario) 's longest serving city councillor until a 2018 electoral loss.

3 - “Moore’s Beach” - without any reference shown to any owners assn nor cross covenants - appears to be a close-knit lakefront southshore of Lower Allumette Lake. It may NOT be a genuine "Building Scheme" within contemplation of the 2016 criteria espoused by EWCA, but the form of legal road co-ownership can be a common component including ( as it is now ) to setting up my own Building Scheme.

"Lower Allumette Lake" appears to be a bifurcated part of the Ottawa River system in “Whitewater Region” ( formerly Westmeath Twp. ) of Renfrew County NW of Ottawa. Closest towns may be Pembroke to west, Beachburg to south, Ft Coulonge to east. Unlike MPP Armstrong's constituency hundreds of KMs away this area has been VERY strongly Tory country for decades.

4 - Armstrong v Moore contains unexplored aspects of another MULTI-YEAR bitter "legacy" road dispute at Rideau Ferry Ontario ( including where "new folks from outside" moved into a 1920's subdivided waterfront and then started rocking the boat furiously ). Such other reinforced how difficult it is for claimants to later get the courts to accept "easement by necessity" arguments - albeit apparently totally ignored anyway by both courts but NOT at least by one of the litigants here . . . )

The Moore's Beach outhouse war :

Armstrong v. Moore, 2020 ONCA 49 issued Jan 27/20 http://canlii.ca/t/j4wd6 upholding MOST of Armstrong v. Moore, 2018 ONSC 7056 issued Nov 27/18 http://canlii.ca/t/hw8r7
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#19047
de-constructing M.P.P.’s COTTAGE OUTHOUSE NIGHTMARE - Armstrong v. Moore 2020/02/15 19:33  
1 - A Postmedia / Ottawa Citizen article of Feb 4 2020 provides some factual detail & photo of the doomed outhouse :
“Squatter's rights — Epic legal battle over disputed Renfrew County outhouse concludes” by Blair Crawford https://ottawacitizen.com/?s=Blair+Crawford+and+%22Renfrew+County+outhouse%22

2 - Again not legal advice

A major point of interest for those condo or Building Scheme folks sharing ownerships in some way, respectfully is # 3 below : why both ONSC below and ONCA on appeal decide to hit the servient tenement owner(s) for $ 8 K albeit nominal but including PUNITIVE damages.

The servient owner Moores did not directly damage anything. They arguably moved to safeguard the legal integrity of the critically important private road. But they did post signs & remove privacy cedars sheltering the "at will" squatting outhouse.

YES, maybe they should have hired a lawyer in 2007-2009 to order the Armstrongs to remove their "at will" structures with reasonable notice. Maybe they even did so ( The decisions are silent about this )

Is there some sorta tort or whatever heading in Ontario like incitement of other arms-length adults to damage by exacerbation or posting alerts ? Or by whatever ? Is it a mild version of using R.I.C.O. racketeering law against Nevada's Benzer gang of condo contract gangsters getting strawpersons onto condo boards ?

1 - THE MUDSLIDE TRIGGERING EVENT 2007
Both courts treated the negligent mudslide as a straightforward chattel damage claim. Mere context and treated as causally irrelevant that the chattel was squatting or at will as a matter of tolerant neighbourliness.

2 - THE Armstrongs’ so-called SQUATTERS RIGHTS OWNERSHIP CLAIM 2007 thereafter ( ie the plaintiffs’ claim for full ownership of underlaid roadway by “adverse possession” claimed perfected BEFORE conversion of the roadways’ registered environment to qualified Land Title )

( Interested folks can check out the familiar 3 part test in ONCA's paras 18-24 )

3 - INCITING OTHER ( arms-length ) ADULTS TO CAUSE DAMAGE OR MISCHIEF BY “EXACERBATION” ? ( SERVIENT OWNER’s at best indirect post-mudslide activities HELD TO HAVE EXACERBATED, INCITED, ENCOURAGED etc ! )

WHY did ONLY the servient tenement owner(s) MOORES get hit by both courts for the post-mudslide scenarios ?

Would it be like purely narrative neutral comments to condo or Building Scheme owners at an Owners Meeting ? Or neutral descriptive narrative in disclosurable Minutes ?


from ONCA Jan 27/20 http://canlii.ca/t/j4wd6 deferring to ONSC except in retracting spoliation of evidence as a ground here :

“ . . . [14] The trial judge also found Howard Moore liable for aiding, abetting, and encouraging the destruction of the outhouse.

He found that Howard knew that the Armstrongs depended on the outhouse and that it would be difficult to use their property without it.

He also found that Howard’s conduct in removing the cedars without advising the Armstrongs contributed to the destruction of the outhouse and shed and that Howard encouraged vandalism and engaged in intimidation.

Since by then the outhouse had already been damaged by Robert’s negligence and there were frailties in the Armstrongs’ evidence as to their damages, the trial judge assessed nominal damages against Howard at an additional $3,000.

[15] Finally, the trial judge found Howard liable for $5,000 in punitive damages for exacerbating the conflict between the parties, exposing the outhouse to further damage by removing the cedars, encouraging vandalism, engaging in intimidation, and for spoliation of evidence to impede the adverse possession claim by removing the cedars and their stumps so that their age could not be verified.

. . . . [35] Appellate deference is owed to a trial judge’s decision to award punitive damages, provided that they are a rational response to the facts, that is, where the misconduct of the defendant is so outrageous that punitive damages are rationally required to act as deterrence: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 76, 100; Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc., 2019 ONCA 439, 1 R.P.R. (6th) 1, at para. 27, leave to appeal refused, [2019] S.C.C.A. No. 307.

[36] In our view, there was a rational basis for the trial judge’s decision to award nominal punitive damages given his findings that Howard Moore exacerbated the conflict between the parties, exposed the outhouse to further damage by removing the cedars, encouraged vandalism, and engaged in intimidation.

The trial judge was entitled to find these acts justified a punitive award as malicious, oppressive, and high-handed misconduct that offends the court’s sense of decency: Whiten, at para. 36, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 196. It was open to the trial judge to conclude that punitive damages in this amount were rationally required.

[37] However, we defer to another day whether a court is entitled to rely on spoliation of evidence as providing a basis for awarding punitive damages. Ontario jurisprudence has yet to resolve definitively whether spoliation is a cause action . . ." - unquote ONCA Jan 27/20
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