Lees v. Parker

2026 BCSC 884 Lees v. Parker IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lees v. Parker, 2026 BCSC 884 Date: 20260513 Docket: S195683 Registry: Vancouver Between: Christina Marie Lees Plaintiff And Carol Anne Parker, Andrew Stromotich, and Elijah Samuel Steele Defendants Before: The Honourable Mr. Justice Tindale Reasons for Judgment Counsel for plaintiff: J.D. Whyte J. Turner, Articled Student Defendant Carol Anne Parker appearing in person: C.A. Parker Place and Date of Trial: Vancouver, B.C. September 24, 25 & 26, 2025; October 22 & November 18, 2025 Place and Date of Judgment: Vancouver, B.C. May 13, 2026 [1] The plaintiff Christina Marie Lees seeks damages in trespass from the defendant Carol Anne Parker. [2] The defendant Carol Anne Parker is opposed to this relief. BACKGROUND [3] The plaintiff is the registered owner of the property located at 681 Hillcrest Road, Gibsons, British Columbia (the "Property"). [4] The defendant on May 6, 2019, resided at 687 Hillcrest Road, Gibsons, British Columbia with her now ex-spouse Andrew Stromotich and their children. [5] Mr. Stromotich entered into a contract with Elijah Samuel Steele to cut down a western red cedar tree (the "Tree") from the Property. [6] On May 6, 2019, Mr. Steele entered the Property and cut down the Tree. [7] On May 14, 2019, the plaintiff filed a notice of civil claim seeking damages against the defendant, Mr. Stromotich and Mr. Steele. [8] On June 20, 2019, the defendant filed a response to civil claim. [9] In April 2023, Mr. Stromotich filed for bankruptcy. [10] On November 8, 2024, Associate Judge Robinson granted the plaintiff leave to amend the notice of civil claim. On November 13, 2024, the plaintiff filed an amended notice of civil claim. [11] The plaintiff did not proceed against Mr. Stromotich or Mr. Steele on this trial. EVIDENCE Plaintiff [12] The plaintiff purchased the Property in 2002 and she resides there. In 2019 the plaintiff was living in the basement of the residence on the Property and renting out the upstairs. [13] The plaintiff describes the Property as having a natural backyard with grass in the back and front yards as well as a hedge in the backyard. The Tree was located in the backyard of the Property. [14] The plaintiff described the Tree as a feature tree on the Property. The Tree would provide shade for the plaintiff's residence and was adjacent to her deck. The plaintiff testified that she really liked the shade that the Tree provided and she would sit under it to cool down in the summer. The Tree also provided her with a lot of privacy from her neighbours. [15] The plaintiff said that she did not have air conditioning on the Property because of the shade that the Tree provided. [16] The plaintiff testified that she had a conversation in 2017 about the Tree with the defendant and Mr. Stromotich. The plaintiff said that the defendant and Mr. Stromotich talked about "Q-tipping" the Tree. The plaintiff said that this agitated her because she did not need people telling her what to do. The plaintiff said that she told them that it was not a priority for her. [17] The plaintiff said that she never had a discussion about cutting down the Tree with the defendant or Mr. Stromotich before or after the Tree was cut down. [18] The plaintiff testified that the Tree was cut down on May 6, 2019, while she was in Vancouver at work. The plaintiff received a text message from her tenant Karen Preston telling her that the Tree was cut down. [19] Exhibit 2 Tab 6 contains the text message exchange between the plaintiff and her tenant Karen Preston. At one point the plaintiff wrote the following: Omg Who did that? Not me [20] The plaintiff at one point asked Ms. Preston to pass the phone to the person cutting down the Tree so that the plaintiff could speak to that person, who was Mr. Steele. The plaintiff told Mr. Steele that she wanted him to stop and he had no permission to cut down the Tree. [21] As a result of the Tree being cut down, the plaintiff contacted the police. [22] Exhibit 2 Tabs 9 and 12 are correspondence between the plaintiff and Mr. Stromotich regarding the cutting down of the Tree. Mr. Stromotich apologizes to the plaintiff for having the Tree cut down in this correspondence. [23] On May 7, 2019, Mr. Stromotich sent an email to the plaintiff which reads in part: I've been up all night thinking about this, and I am really sorry, I should have checked in with you again, as this is a permanent change :( I was under the impression we were good to go, and I did come by and let you tenant know what was up (i wouldn't have just showed up), but I understand how you fell, how she feels and i should have done more to make sure you were still good. [24] On May 8, 2019, the plaintiff sent an email to Mr. Stromotich which reads: I am still in a huge amount of shock that my tree is no longer there. I did not give you, anyone related to you or anyone designated as your agent, permission to cut down the cedar tree in the centre of the backyard of my private property on 681 Hillcrest. [25] The plaintiff testified that after the Tree was cut down her house was extremely warm in the summer months and it was unbearable to sit on the deck in the summer months. Prior to that it was tolerable to sit on the deck in the summer months because the Tree was providing shade. [26] The plaintiff also testified that during the summer the upstairs of her residence is intolerable because of the heat without the shade from the Tree. [27] The plaintiff testified that she had to consider air-conditioning because of the heat and she has obtained an estimate for the cost of that unit. [28] The plaintiff testified that she hired an arborist Michelle McEwen to value the Tree. [29] On cross-examination, the plaintiff testified that the Property is her permanent residence, though she does work in Vancouver and sometimes stays with her partner who resides in North Vancouver. [30] The plaintiff on cross-examination testified that she has lived both upstairs and downstairs in the residence on the Property depending on who her tenants were. [31] The plaintiff testified on cross-examination that she did some work on the railing of her deck with her uncle. She also confirmed that the hedge is on the Property. [32] The plaintiff testified on cross-examination that she spoke to the defendant and Mr. Stromotich after the Tree was cut down. [33] The plaintiff testified on cross-examination that Mr. Stromotich was charged criminally though she was not sure what the charge was. The plaintiff was later told by the prosecutor that there had been a settlement and Mr. Stromotich had paid approximately $10,000 as part of that settlement. [34] The plaintiff testified on cross-examination that she never told the defendant or Mr. Stromotich that she wanted the Tree cut down. [35] The plaintiff agreed on cross-examination that she has not installed an air-conditioning system to date. [36] The plaintiff testified on cross-examination that she had a conversation in 2017 with Mr. Stromotich and the defendant. She disagreed that she ever told the defendant or Mr. Stromotich that she wanted the Tree removed but did not want to pay for it. The plaintiff also disagreed that she shook her finger at the defendant and said she hoped that they decided to take the Tree down. [37] The plaintiff agreed on cross-examination that the defendant showed the plaintiff the defendant's view from her property. The plaintiff however disagreed that she told the defendant that she wanted the Tree removed. The plaintiff told the defendant that she wanted a low maintenance yard. The plaintiff testified that what she meant by a low maintenance yard was that she would have a garden and it would be easy to maintain. Michelle McEwen [38] Michelle McEwen was qualified as an expert in the fields of arboriculture and horticulture. Ms. McEwen provided an expert report which has been marked as Exhibit 1 on this trial. [39] Ms. McEwen opined that the Tree was approximately 45 to 55 feet in height and 40 to 50 years old. Ms. McEwen also opined that the Tree was in good health overall prior to it being cut down. [40] Ms. McEwen opined that, using the Trunk Formula Method for valuing the tree, the Appraised Plant Value for the Tree was $37,300. [41] Ms. McEwen on cross-examination testified that when the Tree trunk split into two parts this was early on in the growth of the Tree and it did not compromise the Tree. [42] Ms. McEwen did not agree that the close proximity of the Tree to the residence on the Property would have caused any problems to the residence. Karen Preston [43] In 2019, Karen Preston was a tenant in the top floor of the residence located on the Property. Ms. Preston described that in the spring of 2019 that there was an incredibly large cedar tree in the backyard of the Property and it provided a lot of shade. [44] Ms. Preston testified that the next-door neighbour and another gentleman asked to go into the backyard of the Property. The neighbour had said that it was okay because he had spoken to the landlord. [45] Ms. Preston said that when came home from work, she saw sunlight coming through the kitchen and the Tree was gone. Ms. Preston had a conversation with the plaintiff in which it became clear that the plaintiff had not arranged to have the Tree taken down. [46] Ms. Preston testified that after talking to the plaintiff she started taking pictures of the backyard of the Property and sent them to the plaintiff on her phone. [47] Ms. Preston on cross-examination testified that her rent at the Property was $1,200 and she did not believe that her rent changed after the Tree was removed. Elizabeth Wood [48] Elizabeth Wood testified that she resides at 680 Hillcrest Road. [49] Ms. Wood testified that in 2018 she had a conversation with Mr. Stromotich where he asked her if she wanted to share the cost of removing a Cedar tree at 681 Hillcrest Road. Ms. Wood testified that she told Mr. Stromotich that she had no interest in doing that. [50] Ms. Wood testified that she never heard from anyone else again about having the Tree removed. [51] Ms. Wood testified that she never had a conversation with the defendant about the Tree. [52] Ms. Wood agreed on cross-examination that she had met the defendant before. [53] Ms. Wood agreed on cross-examination that the plaintiff lived at both the Property and in Vancouver. She testified that after the Tree was removed the plaintiff began living at the Property full-time. Robert Schoor [54] Robert Schoor testified that he had lived at the Property and rented part of the residence from the plaintiff. He moved out in 2005. [55] Mr. Schoor testified that he does the weeding, grass cutting and trimming at the Property for the plaintiff. [56] Mr. Schoor testified that periodically he would talk to Mr. Stromotich and Mr. Stromotich would ask him if the Tree was going to be taken down. [57] Mr. Schoor said that Mr. Stromotich had stated that if the Tree came down Mr. Stromotich's view would be spectacular. [58] Mr. Schoor testified that the Tree kept the house and the deck on the Property cool in the summer. [59] Mr. Schoor on cross-examination agreed that he had never met the defendant nor had any conversation with the defendant about the Tree or the plaintiff's yard. Examination for Discovery of the Plaintiff [60] The plaintiff conducted an examination for discovery of the defendant on January 21, 2022. The plaintiff read in a number of the questions and answers from the examination for discovery, which included the following: Q. 27: Thank you. Is it nonetheless true that both you and Mr. Stromotich contributed funds to the purchase of the 687 Hillcrest Road property? A: Yes, we were common-law couple at the time. Q. 33: Okay, great. Got it. Thank you. Did you have any discussion with Mr. Stromotich before May 6 of 2019 about hiring somebody to remove a tree in the backyard of 681 Hillcrest Road? A: Yes, I did. Q. 64: Okay. So just going back then to this paragraph of your Response to Civil Claim we have been examining, and perhaps the first part of it again: Stromotich did unlawfully employ Steele to conduct the removal of the tree. Did you have any role in, firstly, selecting a tree contractor to remove that tree? A: No, I did put out on Facebook that, you know, if anybody knew of an arborist in Gibsons, that it is very difficult for Andrew to find somebody to do it. There is -- we made telephone calls. You make a date for somebody to come by and they don't. Very odd up here but it happens a lot. Q. 211: All right. No. Thank you. So you understood that in order for either you or Mr. Stromotich to hire Mr. Steele to take down that tree, Ms. Lees had to agree to the removal of the tree, is that right? A: of course, yes. Q.212: And that is because it is her property? A: Of course. Q. 227: Okay. So I understand that you didn't know that Mr. Steele was coming to cut down the tree until you saw, actually saw him in Ms. Lees' backyard? A: No. I think that Andrew and I had spoken at one point, just so you know this is happening. So when I saw the guy there I wasn't alarmed that he was there. Defendant [61] The defendant was in a common-law relationship with Mr. Stromotich from 1994 until 2021. [62] The defendant along with Mr. Stromotich and her family moved to Gibsons in 2010. The defendant says that the latter stages of her relationship with Mr. Stromotich were toxic and she suffered emotional and verbal abuse from him. [63] The defendant says that she ultimately left her residence on Hillcrest Road in July 2023 as a result of the foreclosure proceeding. [64] The defendant says that she liked the Tree on the Property because it gave her privacy and she liked to see the birds in the Tree. [65] The defendant testified that she did not see any benefit in removing the Tree. [66] The defendant testified that she had a conversation with the plaintiff on one occasion about the Tree in 2017. The defendant said that she and Mr. Stromotich were at home and Mr. Stromotich told her that he was going to do work for the plaintiff and remove the Tree and trim the hedges on the Property. [67] The defendant said that she invited the plaintiff into her house in 2017 to show her the view and because the plaintiff had an agreement with Mr. Stromotich to cut down the Tree. The defendant said that she did not have any discussion about the details regarding the cutting down of the Tree or who would pay for it. [68] The defendant said that the plaintiff at one point during the discussions wagged her finger in the defendant's face and told the defendant that she hopes the defendant chooses to take the Tree down. The defendant said that Mr. Stromotich suggested looking into "Q-Tipping" the Tree. [69] The defendant testified that she only knew what she was told by Mr. Stromotich about cutting down the Tree and she believed that he thought he had permission to do so. The defendant said that she liked the birds in the Tree and did not want the Tree to come down. [70] The defendant testified that she put an ad on Facebook looking for an arborist for Mr. Stromotich. [71] The defendant testified that she had no dealings with Mr. Steele until after the Tree was cut down. [72] The defendant testified that on May 6, 2019, Mr. Stromotich called the defendant and told her that the Tree was going to come down that day. She saw Mr. Steele at some point during that day. [73] The defendant stated that she only had one conversation with the plaintiff and that is when the plaintiff said she wanted the Tree to come down. After that she does not know what conversations the plaintiff and Mr. Stromotich had with one another. [74] The defendant said she assumed the plaintiff consented to the Tree being cut down. [75] The defendant disagreed on cross-examination that the plaintiff told her in 2017 that she liked the shade of the Tree and that it was not a priority for the plaintiff to have the Tree Q-Tipped. [76] The defendant agreed on cross-examination that the plaintiff could have changed her mind after their conversation in 2017 about having the Tree removed. The defendant also agreed that Mr. Stromotich should have contacted the plaintiff before the Tree was removed. POSITION OF THE PARTIES Plaintiff [77] The plaintiff seeks damages from the defendant for the tort of trespass as a result of Mr. Steele entering the Property and cutting down the Tree. The plaintiff says this was done for the benefit of the defendant and Mr. Stromotich. [78] The plaintiff submits that the burden is on the defendant to prove that they had consent to cut down the Tree. [79] The plaintiff says that she did not give consent to anyone to cut down the Tree. [80] The plaintiff rejects the defendant's suggestion that there was an agreement in which the plaintiff would consent to the trimming of her rear hedge if the defendant also removed the Tree for her and paid for it all. [81] The plaintiff argues that this agreement is highly improbable because there is no written confirmation of that agreement and the defendant and Mr. Stromotich did not notify the plaintiff about the Tree being cut down on May 6, 2019, over a year after the defendant says the agreement was made. [82] The plaintiff argues that there is no benefit to her to have the Tree removed. She had done a number of improvements and maintenance to the Property over the years, including hiring Mr. Schoor as a gardener. The plaintiff says she was not adverse to spending money to maintain the Property. [83] The plaintiff further submits that there is no evidence in this case to support the defendant's claim that cutting the Tree down benefits the plaintiff in relation to the rotting out of her rear deck. [84] The plaintiff argues that if the defendant is saying that she had an honestly held mistaken belief that the plaintiff had consented to the removal of the Tree, this is not borne out in the evidence. [85] The plaintiff argues that only the defendant benefited from any agreement to remove the Tree and notes that there is no written documentation of any agreement. Further, the defendant made no effort to confirm the alleged agreement with the plaintiff. [86] The plaintiff submits that it is clear that Mr. Stromotich expressly arranged for Mr. Steele to cut down the Tree without the consent of the plaintiff and the defendant is jointly liable for those actions. [87] The plaintiff notes that in the defendant's response to civil claim it is admitted that Mr. Stromotich arranged for and benefited from Mr. Steele cutting down the Tree. The defendant paid for Mr. Steele to cut down the Tree and benefited from the Tree being cut down. [88] Further the plaintiff argues that the defendant agreed during her examination for discovery that both she and Mr. Stromotich discussed hiring somebody to remove the Tree and she was aware the plaintiff had to agree to the removal of the Tree because it was on the Property. [89] The plaintiff also notes that the defendant made a post on Facebook looking for a local arborist to cut down the Tree. The defendant had advance knowledge that Mr. Steele was coming to cut down the Tree and she benefited from the removal of the Tree because it opened up some of the view from her back deck [90] The plaintiff argues that the defendant and Mr. Stromotich sought out, arranged, directed, and benefited from Mr. Steele's trespass and the defendant is jointly liable for the trespass as a joint tortfeasor. [91] The plaintiff seeks compensatory damages for this trespass. The plaintiff says, based on the evidence of Ms. McEwen, the restoration costs for replacing the Tree is $37,300 before taxes. With GST and PST, the plaintiff says she is entitled to $41,776. [92] The plaintiff also argues that she is entitled to damages for loss of amenity as a result of the loss of the Tree. [93] In establishing an appropriate award for loss of amenity, the plaintiff relies on the following cases: 1) Glashutter v. Bell, 2001 BCSC 1581; 2) Gibson v. F.K. Developments Ltd., 2017 BCSC 2153; 3) Kranz v. Shidfar, 2011 BCSC 686; 4) Craig v. North Shore Heli Logging Ltd., 34 B.C.L.R. (3d) 330, 1997 CanLII 2067 (S.C.); and 5) 0973210 B.C. Ltd. v. Khatkar, 2023 BCSC 1529. [94] The plaintiff argues that an appropriate award for loss of amenity is $20,000. [95] The plaintiff seeks special damages in the amount of $19,635.02 to install air conditioning in her residence on the Property. The plaintiff and Mr. Schoor gave evidence about the shade from the Tree provided and how hot the house had been since the Tree was removed. [96] Spani Developments have provided a quote of $19,635 for the installation of an air-conditioning system for the plaintiff. [97] The plaintiff is also seeking punitive damages from the defendant. The plaintiff argues that most trespass and unauthorized removal of trees cases consider claims for punitive damages. [98] The plaintiff argues that the defendant did not obtain permission from the plaintiff to cut the Tree down. [99] The plaintiff argues that the defendant and Mr. Stromotich concocted a prior oral agreement that the plaintiff had agreed to the removal of her tree. The plaintiff argues that it is obvious that the defendant wanted to improve her view from her residence and that is why the Tree was cut down. [100] The plaintiff argues that an appropriate award for punitive damages is $35,000. The plaintiff primarily relies on the decisions of Minicucci v. Liu, 2021 BCSC 1640 and Craig to establish the punitive damage award. [101] In total the plaintiff seeks an award for damages of $116,411. [102] The plaintiff says that the defendant in her response to civil claim made the admission that she paid for Mr. Steele's services. She has not amended her pleadings and cannot now argue that she had nothing to do with the Tree being cut down. [103] The plaintiff testified that the Property was her principal residence. [104] The plaintiff argues that the defendant is a joint tortfeasor because she was the owner of her residence along with Mr. Stromotich and both Mr. Stromotich and the defendant benefited from Mr. Stromotich's trespass on the Property: Lahti v. Chateauvert, 2019 BCSC 1081 at para. 78. Defendant [105] The defendant said that she did not personally cut down the Tree nor did she want the Tree to be cut down. [106] The defendant says that Mr. Stromotich had mental health issues and he was emotionally, verbally and financially abusive to her. [107] The defendant argues that that the plaintiff lived in Vancouver and was not at the Property very often. [108] The defendant contends that she had a conversation with the plaintiff in 2017 and told her she did not want to see the Tree cut down but she understood that the plaintiff had to remove the Tree because of the damage it was causing to her deck and foundation. The defendant says that Mr. Stromotich arrived at the end of this conversation and he along with the plaintiff had a conversation about Q-tipping the Tree and trimming the hedges. [109] The defendant agrees that she made a post on Facebook looking for an arborist because Mr. Stromotich was having difficulty finding one. [110] The defendant says that on May 6, 2019, she was at home on a day off and was told by Mr. Stromotich that an arborist was coming to cut down the Tree. It was not until later that the defendant learned that the plaintiff was upset about the Tree being cut down. [111] The defendant says that she was not privy to conversations that Mr. Stromotich had with Ms. Prichard, Ms. Preston or Mr. Schoor. [112] The defendant argues that the plaintiff was not honest during her testimony when she claimed that her primary residence was at the Property. In fact, Ms. Prichard testified that the plaintiff lived in Vancouver full-time. [113] The defendant argues that she was not involved in the arrangement between Mr. Stromotich and Mr. Steele to cut down the Tree. The mere fact that she was aware of it and was home does not make her liable to the plaintiff for damages. [114] The defendant denies that Mr. Stromotich was acting as her agent. [115] The defendant argues that the air-conditioning system that the plaintiff says needs to be installed is not warranted. The plaintiff has done many renovations on the Property and never installed an air-conditioning system. [116] The defendant argues that she did not have a common goal with Mr. Stromotich to cut down the Tree because she did not want the Tree cut down in the first place. [117] The defendant argues that she was a credible witness. [118] The defendant says that Mr. Stromotich has paid money to the plaintiff for compensatory damages through his criminal proceeding. [119] The defendant says that the loss of amenities of the Tree is not compensable because the plaintiff used the Property as a rental property and did not personally enjoy these amenities. [120] The defendant argues that liability should be apportioned in accordance with the degree of fault and she is not at fault for the plaintiff's damages. [121] The defendant says that she is not a joint tortfeasor and relies on the following cases in that regard: 1) I.C.B.C. v. Stanley Cup Rioters, 2016 BCSC 1108; and 2) Khudabux v. McClary, 2018 BCCA 234. [122] The defendant says that the case against her should be dismissed. DECISION [123] The plaintiff brings her case in trespass against the defendant. [124] In Lahti, the court summarized the law of trespass: [6] Trespass to land is defined in G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) at 29: Trespass to land consists of entering upon the land of another without lawful justification, or placing, throwing or erecting some material object thereon without the legal right to do so. To constitute trespass the defendant must in some direct way interfere with land possessed by the plaintiff. The requirement of directness differentiates trespass from nuisance, which is committed when the defendant makes a use of his land that indirectly affects the land of the plaintiff. A. Defence of Consent [7] There is no trespass if the plaintiff consents to the defendant entering on the plaintiff's land. The Saskatchewan Court of Appeal provided an overview of the defence of consent in Montreal Trust Co. v. Williston Wildcatters Corp., 2004 SKCA 116 (Sask. C.A.) at paras. 23-24, which was adopted by this Court in Urbanczyk v. 1128 Enterprises Ltd., 2019 BCSC 117 at para. 74. I summarize the principles most relevant to this case as follows: 1) The defence of consent or "leave and licence" provides that no trespass will be committed if the defendant acted with the express or implied consent of the plaintiff: Montreal Trust Co. at paras. 23, 29. 2) If the defendants' conduct goes beyond the permission given, those actions exceeding the scope of consent will not be protected by leave and licence: Montreal Trust Co. at para. 31. 3) The burden of proving leave and licence rests on the defendant: Montreal Trust Co. at para. 23. 4) Leave and licence can be proven: 1) by an express agreement that amounts to leave and licence; or, 2) it can be implied (a) through conduct; (b) through acquiescence; or, 3) a combination of all three. All relevant circumstances must [sic] examined to determine whether the conduct of the plaintiff amounts to leave and licence on the facts of the case. [Montreal Trust Co. at para. 23] B. Mistake [8] Mistake is not a defence to trespass: Scott v. PDF Training Inc. et al., 2004 BCSC 1646 at para. 174, aff'd 2008 BCCA 35; Shaman v. Meek, 2019 BCSC 9 at para. 31; Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124 at para. 132, leave to appeal ref'd [2017] S.C.C.A. No. 95. Rather, for the tort of trespass, "[i]t is generally viewed that 'intentional' does not mean that the defendant intended to do a wrongful act against the plaintiff, but that the defendant completed a voluntary and affirmative act. Trespass will occur, regardless of consciousness of wrongdoing, if the defendant intends to conduct itself in a certain manner and exercises its volition to do so" [citations omitted]: Peter Ballantyne at para. 132, quoted in Shaman v. Meek at para. 31. [125] The plaintiff was very clear in her evidence that she did not give Mr. Stromotich or the defendant permission to enter the Property and cut down the Tree. The plaintiff acknowledged that she had a conversation with Mr. Stromotich and the defendant in 2017 in which Mr. Stromotich discussed Q-tipping the Tree, however the plaintiff testified that she became agitated at him for telling her how to manage her affairs and that was the end of the discussion. [126] The defendant says that there was an agreement where the plaintiff would consent to the trimming of her rear hedge if Mr. Stromotich and the defendant also removed the Tree and they paid for it. This conversation is denied by the plaintiff. [127] The defendant also gave evidence that she liked the Tree and watching birds in the Tree and that she never expressed a desire to have the Tree removed. [128] I do not accept the evidence of the defendant that there was ever a conversation between the plaintiff and Mr. Stromotich or the defendant where she agreed that they could remove the Tree if they trimmed her hedges and paid for that work. [129] I say this because there is no evidence of any benefit to the plaintiff in having the Tree removed. The evidence establishes that the plaintiff had spent money on updating and renovating the Property in the past. There was no reason to remove the Tree or to ask Mr. Stromotich or the defendant to remove the Tree. There is also no written agreement or written evidence of such an agreement. [130] Further this alleged conversation about cutting down the Tree occurred over a year before the Tree was removed and yet neither Mr. Stromotich nor the defendant had any further communication with the plaintiff regarding the removal of the Tree. [131] It makes no sense that the plaintiff would not have been notified in advance of Mr. Steele attending at the Property to cut down the Tree if the plaintiff had consented to the Tree being removed. [132] I find that the plaintiff did not give consent to either Mr. Stromotich or the defendant to enter on the Property and remove the Tree. Mr. Stromotich and the defendant benefited from the removal of the Tree as it improved the view from their residence. [133] There was nothing about the conversation that the plaintiff had with the defendant and Mr. Stromotich which could have led to a subjective belief in consent. Rather the defendant and Mr. Stromotich refused to accept the fact that the plaintiff did not consent to them entering the Property and removing the Tree. [134] Based on the evidence on this trial, it is clear that Mr. Stromotich did not have the consent of the plaintiff to cut down the Tree and he, along with Mr. Steele, committed a trespass on the Property when Mr. Steele removed the Tree. [135] The central issue on this trial is whether or not the defendant is liable as a joint tortfeasor. [136] In Lahti the court adopted the legal principles relating to joint tortfeasors in the context of a trespass case as summarized in Burnaby (City) v. Thandi et al., 2005 BCSC 1478: [10] The legal principles relating to joint tortfeasors were set out in the context of a trespass case in Burnaby (City) v. Thandi et. al., 2005 BCSC 1478 at paras. 118-120 as follows: [118] In Fridman, supra, at p. 888, joint tortfeasors are defined as follows: For two or more persons to be considered to be joint tortfeasors, the tort in question must be committed by one of them on behalf of or in concert with another. The acts must be performed in the furtherance of a common design. [119] In Insurance Corp. of British Columbia v. Vancouver (City), (1997), 38 B.C.L.R. (3d) 213 (B.C.S.C.) (affirmed on appeal on this definition, but reversed on the application of the facts to the law), (2000), 73 B.C.L.R. (3d) 1 (B.C.C.A.), Harvey J. stated the law as this: Where two or more persons agree on a common course of action which is unlawful and tortious in itself, and in furtherance of the agreement one of the parties commits a tort, the tort will be imputed to the others However if the common course is not unlawful or tortious in itself, and in furtherance of the agreement one of the parties commits a tort, that tort will not be imputed to the others merely by reason of the agreement Where the common course is not unlawful or tortious in itself, the relationship between the parties must be such that they can be said to be joint tortfeasors. [120] In Bains v. Hofs (1992), 76 B.C.L.R. (2d) 98 (B.C.S.C.), Boyd J. considered the issue of joint tortfeasors and said the following at p. 103: The issue is whether in these circumstances, Langbroek is, in law, a joint tortfeasor. In The Law of Torts, 7th ed. (The Law Book Company Ltd.) c. 11, p. 229, Fleming discusses the concept of joint tortfeasors: "A tort is imputed to several persons as joint tortfeasors in three instances, viz. agency, vicarious liability, and concerted action ... The critical element of the third is that those participating in the commission of the tort must have acted in furtherance of a common design. There must be 'concerted action to a common end', not merely 'a coincidence of separate acts which by their conjoined effect cause damage' (The Koursk [1924] P. 140 at 156). Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realise that they are committing a tort. All persons acting in pursuance of a common end, being thus identified with each other, are accordingly responsible for the entire result and so it was laid down in 1612 that 'all coming to do an unlawful act, and of one party, the act is the act of all the same party being present' (Heydon's Case, 77 E.R. 1150 at 1151)." It is the question of concerted action that arises in the case at bar. On this issue, the learned author continues on to say at p. 230: "While the requisite degree of participation has not been precisely defined in modern decisions, there is a cogent support both in principle and ancient authority for the suggestion that it may well correspond with the description attached by the criminal law to principles in the first and second degree. This would include, besides the actual perpetrator, anyone who 'aids and abets', whether or not he actively intervenes. Knowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong would suffice." Thus, one who knowingly assists or encourages another to commit a tort, or one who is merely present as a conspirator in the wrong that is done, is, in law, a joint tortfeasor. [137] The defendant during her examination for discovery on January 21, 2022, acknowledged that she was in a common-law relationship with Mr. Stromotich when the Tree was cut down and that both her and Mr. Stromotich contributed funds to the purchase of their residence located at 687 Hillcrest Road. [138] The defendant also acknowledged during her examination for discovery that she had a discussion with Mr. Stromotich before May 6, 2019, about hiring someone to remove the Tree on the Property. The defendant stated that she made a post on Facebook looking for a local arborist to cut down the Tree. [139] The defendant also testified during her examination for discovery that she knew in advance that Mr. Steele was coming to cut down the Tree and that she had only had one conversation with the plaintiff about the Tree. [140] The defendant in her response to civil claim filed June 20, 2019, under the heading "Division 2 - Defendant's Version of Facts", stated the following at para. 14: The tree cutting was the preferred method of action with regards to the tree, and has received the full benefit of the work done by Steele and paid for by Parker. [141] The defendant was aware that she needed the consent of the plaintiff to enter onto the Property to cut down the Tree, which I find the plaintiff never gave to the defendant or Mr. Stromotich. [142] Ms. McEwen in Exhibit 1 at page 18 notes the following in relation to the defendant's residence at 687 Hillcrest Road: "There are no trees noted along the neighbour's southeast property line and the only obstruction from an uninterrupted view was Ms. Lees Cedar tree." [143] The defendant and Mr. Stromotich benefited from the removal of the Tree as it opened up the view from their residence. [144] The defendant spoke to Mr. Stromotich about hiring someone to remove the Tree and the defendant assisted Mr. Stromotich in that endeavor by helping him find an arborist to cut down the Tree. [145] Further, the defendant was aware beforehand that Mr. Steele was coming to the Property to cut down the Tree and the defendant made admissions in her reply to civil claim that she paid Mr. Steele. [146] The tort of trespass was directly committed by Mr. Stromotich and Mr. Steele. In my view, the tort of trespass was committed in furtherance of a common design that was to benefit the defendant and Mr. Stromotich's view from their residence. The defendant knowingly assisted Mr. Stromotich and Mr. Steele in committing the tort of trespass by seeking out an arborist to cut down the Tree and by paying Mr. Steele for his services. [147] The defendant is liable for the tort of trespass as a joint tortfeasor. Damages [148] The plaintiff seeks compensatory and punitive damages from the defendant in the amount of $116,411 as well as prejudgment interest from the date of loss and costs of this action. Compensatory Damages [149] In Glashutter the court discussed the purpose of compensatory damages: [32] Compensatory damages in cases such as these serve a two-fold purpose. They provide a sum sufficient to pay for the remedial work that a reasonable person with sufficient resources would have implemented had the loss of the trees occurred without fault on the part of anyone. In addition, they provide an amount that will compensate fairly for the loss of use and enjoyment of the trees to the extent the remedial work does not completely replace what has been lost (Kates v. Hall (1991), 53 B.C.L.R. (2d) 322). [150] Ms. McEwen established the value for the Tree using the Trunk Formula Method. Ms. McEwen wrote the following at page 23 of Exhibit 1: The Trunk Formula Method determines the value of a tree based on the largest commonly available transplantable tree size (Tree Cost) including delivery costs and its Cost of Installation, plus the increase in value due to the larger size of the tree being appraised. These values are adjusted according to the Species of the tree and its physical Condition and landscape Location (Site, Contribution and Placement). [Emphasis in original.] [151] The Trunk Formula Method developed by the International Society of Arboriculture has been used as a "rule of thumb" to determine the amount of general damages in awards where restoration of the tree is not feasible: Dykhuizen v. Saanich (District), 63 D.L.R. (4th) 211 at 213, 1989 CanLII 5281 (B.C.C.A.). [152] Ms. McEwen opined that the Appraised Plant Value for the Tree was $37,300. This amount did not reflect taxes. The plaintiff submits that the Appraised Plant Value including GST and PST amounts to a figure of $41,776. [153] I accept the evidence of Ms. McEwen as to the value of the Tree using the Trunk Formula Method and award the plaintiff $41,776 for restoration costs. [154] The plaintiff also seeks damages for loss of amenity which are not addressed in the Trunk Formula Method. [155] The plaintiff says that, because the Tree was a central feature in her yard, the removal of the Tree has had a severe impact upon the aesthetic look of the Property. [156] Ms. McEwen in Exhibit 1 stated the following at page 25: "there is little to no likelihood of replacing a Cedar tree of this size and maturity." [157] Ms. McEwen noted wildlife, including birds, would be negatively impacted by the removal of the Tree. Ms. McEwen also noted that the Tree, which was a stand alone, open grown tree, was a prominent feature on the Property. [158] The plaintiff can be compensated for loss of amenity as a subcategory of general damages because the replacement of the Tree will not put the plaintiff in the same position she was in prior to the defendant's trespass: 0973210 B.C. Ltd. at para. 21. [159] In this case I accept the plaintiff has suffered a loss of privacy, shade and a sense of invasion from the trespass. The plaintiff argues that an appropriate award for loss of amenities would be $20,000. [160] In Kranz the court awarded $20,000 for loss of amenity as a result of a number of trees being cut down from the plaintiffs' property and the resulting loss of privacy and sense of invasion that the plaintiffs experienced. [161] In my view the plaintiff's loss in the case at bar is not as severe as in Kranz. I award $10,000 for loss of amenity because the plaintiff has suffered a loss of privacy, shade and a sense of invasion from the trespass by the defendant. Special Damages [162] The plaintiff also seeks special damages for the installation of an air-conditioning unit. [163] In Exhibit 2 at Tab 20 is a proposal from Spani Developments for the installation of a cooling system at the Property. The estimate to install this cooling system is $19,635. The estimate includes the installation of two 3-tonne outdoor condenser appliances. [164] The plaintiff and Mr. Schoor testified that the residence on the Property becomes hot in the summer as a result of the loss of shade from the removal of the Tree. [165] There is no evidence that the plaintiff, who rents out a portion of the residence on the Property, has lost any tenant since the Tree has been removed. [166] There is no evidence from a representative of Spani Developments as to why two 3-tonne outdoor condenser appliances would be required. [167] Despite the fact that the Tree was removed in 2019, the plaintiff has not installed any air conditioning unit on the Property. [168] I am not satisfied that the plaintiff, who has an obligation to mitigate her losses, intends to install an air-conditioning unit on the Property as a result of the Tree being removed, nor am I satisfied that the proposal from Spani Developments is reasonable. [169] I dismiss the plaintiff's claim for special damages. Punitive Damages [170] The plaintiff seeks punitive damages against the defendant in the amount of $35,000. [171] In Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-operative Association., 2009 BCCA 457 [Bowen], the British Columbia Court of Appeal applied the principles governing punitive damages that the Supreme Court of Canada set out in Whiten v. Pilot Insurance Co., 2002 SCC 18, to a trespass case. These principles were summarized in Bowen as follows: [23] This brings us to the Supreme Court of Canada's seminal decision in Whiten. It was, of course, not a case of trespass but of an insurer's contesting a fire insurance claim in bad faith. However, the Court carried out a comprehensive review of the law relating to punitive damages in Canada and elsewhere. At paras. 67-76, the Court drew ten general principles or conclusions from its comparative survey, which principles I paraphrase as follows: 1. Punitive damages are not limited to particular "categories" of wrongs, although by their nature they will "largely be restricted to intentional torts"; 2. The general objectives of punitive damages are punishment, deterrence of the wrongdoer and others, and denunciation; 3. Since the primary vehicle of punishment is criminal law, punitive damages should be resorted to only in "exceptional cases and with restraint"; 4. The use of pejoratives such as "high-handed" or "oppressive" does not provide useful guidance (or discipline) to judges or juries and a more principled approach is desirable. (Notwithstanding this, the Court said at para. 94 that punitive damages are to be imposed only if there has been "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour."); 5. In setting punitive damages, the court should ask itself "in particular" how an award would further one or other of the objectives of the law and what is the lowest award that would serve the purpose; 6. It is "rational" to use punitive damages to relieve a wrongdoer of its profits where compensatory damages would amount to "nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others." 7. A "formulaic" approach should be avoided. The court should focus not on the plaintiff's loss but on the defendant's misconduct; 8. The overall award should be rationally related to the objectives for which punitive damages are awarded; 9. Juries should receive more help from judges concerning the function of punitive damages and factors governing such awards and the assessment of a proper amount; 10. Punitive damages are not "at large" and an appellate court may intervene if an award exceeds the outer boundaries of a rational and measured response to the facts of the case. [172] There is some evidence on this trial that Mr. Stromotich, as a result of criminal charges related to the cutting down of the Tree, ultimately paid $10,000 into court as part of what appears to be a diversion agreement. It is not clear what the status of this $10,000 is from the evidence on this trial. [173] The circumstances of this case are disturbing because the defendant did not have the permission of the plaintiff to enter onto the Property and cut down the Tree. The Tree was not on the property line between the Property and the defendant's residence but rather it was in the middle of the plaintiff's backyard and in my view the Tree was only cut down to improve the defendant's view from her property. [174] Denunciation and deterrence are important objectives in this case. In addition to the cases of Kranz, 0973210 B.C. Ltd., Minicucci and Craig the plaintiff relies on the following additional cases to establish an appropriate award for punitive damages: 1) Hanna v. Muir, 2000 BCSC 1388; and 2) Horseshoe Bay Retirement Society v. S.I.F Development, 1990 CanLII 1107 (B.C.S.C.). [175] While all of the above noted cases are helpful none of them have precisely the same facts as the case at bar. [176] In order to deter the defendant and others from this type of conduct and denounce the defendant's actions, an appropriate award for punitive damages is $10,000. CONCLUSION [177] The defendant is liable as a joint tortfeasor in trespass for the removal of the Tree from the Property. [178] The plaintiff's claim for special damages is dismissed. [179] The plaintiff is entitled to the following damages: (1) Compensatory damages - $51,776 (restoration costs of $41,776 and loss of amenity $10,000); and (2) Punitive Damages - $10,000 Total: $61,776 [180] The plaintiff is entitled to prejudgment interest from the date of the loss, being May 6, 2019, at registrar's rates. [181] The plaintiff is entitled to her costs of this trial. "The Honourable Mr. Justice Tindale"