Tuesday, May 20, 2014

Stranger than Fiction: Judge Mocks Bickering Neighbours

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.
This is the operative passage in a recent decision by Justice Morgan of the Ontario Superior Court of Justice in Morland-Jones v. Taerk, which is basically going viral - at least in legal circles.  (I've seen it pop up from multiple sources already today on Facebook and Twitter.)  Read the case.  It's not that long, and it's a good read.

The fact pattern is fairly convoluted, as neighbour disputes tend to be.  These two couples live across the street from each other in a posh Forest Hill neighbourhood, on a "well-manicured, picturesque street", with "numerous high end automobiles parked outside their homes".  Mr. Morland-Jones is an oil executive, and Mr. Taerk is a psychiatrist.  Both very successful and well-to-do professionals.

The Plaintiffs (the Morland-Joneses) have multiple video cameras around their home for security purposes, including two aimed directly at the Taerks' front door and driveway.  (This, in my view, is asking for trouble.  Security cameras are fine, but positioning should be discreet with an aim to record only what happens on your own property and surrounding public lands; when you start recording when your neighbours come and go, that's likely to build into a problem.  As Justice Morgan put it, the security system is "as much a sword as it is a shield.")

The current fight basically boils down to an incident several years ago.  Ms. Taerk did something terrible:  After her dog did its business on her lawn, she picked up and bagged the product, and - rather than go around to her own garbage at the back of the house - dared to discard the bag in the Morland-Jones' garbage bin at the curb.  And, to boot, when Mr. Taerk walked the dog, the dog occasionally dared to 'water' bushes lining the Morland-Jones' lawn.  This led, in 2008, to a lawyer's Cease and Desist letter, enclosing stills from the video coverage.

And, as neighbour disputes tend to, this deteriorated into a whole lot of bickering.  The Morland-Joneses complain that the Taerks occasionally park one of their cars in front of their (the M-Js) home...however, this accusation "was admittedly pressed rather sheepishly by Plaintiff's counsel, since the Plaintiffs have conceded that they park one of their own cars in front of the Defendants' home every day."  (Which they couldn't help but admit, since their own security footage "shows the Plaintiff's car sitting there day after day.")  The Plaintiffs complain that Mr. Taerk always walks by their home with an audio recorder, which Mr. Taerk says he does because Ms. Morland-Jones "occasionally shouts profanity or other insults at him when he is on his walks".

The Plaintiffs also complain that Ms. Taerk stands in her driveway and stares at their home, or stands there with a camera phone taking photos of them or their house (or their housekeeper taking their own dog for its "daily constitutional").  Surprisingly, Justice Morgan did not highlight the irony of this complaint in light of the Plaintiffs' own admission that they take 24/7 video footage of the Taerk house - indeed, the evidence of her doing so, standing in her own driveway taking pictures, is from cameras on the other side of the street.

Ms. Taerk's evidence is that, in fact, she doesn't take pictures.  She just stands there with a camera phone pretending to take pictures.  (Justice Morgan seems none-too-impressed with this, too, though it seems to me that there's an element of "How do you like having everything you do recorded?" to Ms. Taerk's conduct.)  "In any case, Ms. Morland-Jones can be counted on to respond as predicted.  It is a repeated form of hijinks that could, if a sponsor were found, be broadcast and screened weekly, although probably limited to the cable channels in the high 300's."

Likewise with the audio recording - it has come to the point that the Taerks intend to provoke "the very outbursts that he was at first reacting to".

It escalated, with the Taerks calling the police, the Morland-Joneses applying for a peace bond, and then on to this civil litigation.  This decision was in context of a motion by the Morland-Joneses seeking injunctive relief.

The Morland-Joneses also summonsed a whole bunch of other neighbours and former-neighbours as witnesses to prove that everyone hates the Taerks...but as it turns out, that wasn't the evidence they gave.  (The evidence that they were looking for has all the earmarks of neighbourhood gossip - for instance, they asked a professor to confirm that "she sold her house for below market value just to get away from the Defendants; she said that she did not."  Summonsing an unwilling witness, for this very reason, is something that litigators very seldom consider.)

Suffice it to say that the motion was unsuccessful.  "As I explained to Plaintiffs' counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs.  Litigation must focus on legal wrongs and legal rights - commodities which are in remarkably short supply in this action."

However, no costs were ordered.  Justice Morgan felt that the Taerks egged on the Plaintiffs to provoke the law suit.

Commentary:  As Neighbour Disputes Go...

In my general litigation experience, I've dealt with a number of neighbour disputes.  Suffice it to say that this is a mild one.  Both sides appear to fundamentally respect the property line to the extent of not crossing it.  No vandalism, no trespassing, no physical assaults, no actual threats, no property damage, no allegations of attempts to kill family pets (which, believe it or not, I've seen on multiple occasions).  Of course, it helps that, in this case, there's no dispute about the property line itself - it's a common feature of neighbour disputes that they involve a dispute over the location of the property line, or over rights associated with easements or rights-of-way.  Still, as juvenile as this bickering is, it's a fairly unusual feature of this case that it didn't actually deteriorate into any really tortious or criminal misconduct.

Thus, I see the Taerks' response as actually being fairly restrained.  They're getting recorded 24/7, getting Cease and Desist letters for some really marginal stuff, and getting (allegedly) yelled at and sworn at just walking by their neighbour's house.  Nobody wants to live like that.  Some people would do whatever they could to avoid triggering the Morland-Joneses, not going outside when they're there, etc., becoming prisoners in their own homes.  The Taerks went the other way, and decided that, if they're going to have to live with that nonsense, they might as well find some pleasure in it.  I feel bad for the fact that they incurred tens of thousands of dollars in costs, defending an action which was clearly devoid of any merit, even if they weren't entirely blameless in it having been brought.  In essence, the legal process is being used as a punishment for their conduct.

But, given the complete absence of tortious conduct here, I'm a little surprised by the Plaintiffs' counsel.  They had a senior litigator (and a junior-but-still-seasoned second chair) from a major Bay Street firm, lawyers who shouldn't need to have it explained to them that "a court cannot order the Defendants to be nice to the Plaintiffs".  (These weren't the same lawyers, it appears, who sent the original Cease and Desist.)

Don't get me wrong - I don't assume that the Plaintiffs didn't have it explained to them that this was a nonsense case.  Quite the contrary, unless there are a lot of facts that didn't make it into Justice Morgan's judgment, I have to assume that the Plaintiffs have had it explained to them on multiple occasions that this case is a loser, and that they wanted to proceed anyways.  Still, it's probably not the case that the Plaintiffs' counsel explained it in the strong terms Justice Morgan used, and it's quite appalling that this case ever saw the inside of a courtroom.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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