May 21, 2014

Neighbours (with apologies to Seth Rogen)

Morland-Jones v. Taerk, 2014 ONSC 3061 (CanLII)
The Internet Movie Database Listing for the spring 2014 comedy "Neighbors" summarizes the plot as follows:
A couple with a newborn baby face unexpected difficulties after they are forced to live next to a fraternity house.

Hilarity ensues as the neighbours one-up each other with practical jokes that push (pass?) the bounds of good taste.
Modify the premise slightly, remove the slapstick and you have what Morgan, J. describes here as two families who:
[1] ... live across the road from each other in Toronto’s tony Forest Hill neighbourhood. ... both families live in stately houses on a well-manicured, picturesque street ...[and] have numerous high end automobiles parked outside their homes.

With the same understated tone used through out the judgement, Justice Morgan continues:
[2] ...They do not seem to like each other, and neither do their respective spouses,

Without specifying the precise details of the "various forms of injunctive relief" sought by the Plaintiffs, we learn that:
[3] ...It all flows from the Plaintiffs’ allegation that the Defendants have been misbehaving and disturbing their peaceful life in this leafy corner of paradise.

The 20 paragraphs that follow must be read to be believed, but among the evidence and allegations put before the Court we are informed as follows:

  • the Plaintiffs’ house is ringed with eleven video cameras, two of which are aimed directly at the Defendants’ front door and driveway

  • the Court was treated to "security footage" in which one of the Defendants is seen performing a “poop and scoop” of their dog's business and then crossing the street toward the Plaintiffs’ driveway and the out-of-frame garbage cans, followed by an empty-handed return moments later. This incident is described by the court as "a high point of this claim" and seemingly part of a series of canine evacuation activities that prompted the Plaintiffs, through counsel, to send a cease and desist letter to the Defendants in 2008.

  • As it happens, the Defendants are said to occasionally record the "daily constitutional" of the Plaintiffs' own pooch which takes place in close proximity to the Defendants' property.

  • the Defendants are accused of occasionally parking one of their cars on the street in a legal parking spot in front of the Plaintiff’s home "just to annoy them". An act that may have been occasionally reciprocated.

  • the Defendants are said to be in the habit of sometimes taking - or merely pretending to take - cell phone pictures of the Plaintiffs’ house (actions presumably captured on one of the Plaintiffs' cameras pointed at the Defendants' house).

  • The Defendants are alleged to enjoy getting a rise out of the Plaintiffs through ostentatious manipulation of hand-held video and audio recording devices in plain view of the Plaintiffs.

  • It goes on.....

Have you found the justiciable issue yet? Anything that demands that the resources of the Court be brought to bear?
Not me. Perhaps that's why I'm not in private practice.
I'm also unclear on why multiple witnesses were needed - four of whom were summoned under Rule 39.03 of the Ontario Rules of Civil Procedure and thus compelled to attend.
Justice Morgan shows more respect to the parties than they have shown each other, but is nonetheless quite direct in disposing of the motion:
[23] In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher...[...]... 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.
[24] ...[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. [...]
[25] I cannot help but comment that the courts as public institutions are already bursting at the seams with all manner of claims. To add to that public burden the type of exchanges that these parties have engaged in would be to let the litigious society stray without a leash – or perhaps without a lis. [...]
[26] ...[...]...There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.
[27] There is no serious issue to be tried in this action. The Plaintiff’s motion is therefore dismissed.

The parties are said to have submitted costs outlines indicating the expenditure of "tens of thousands of dollars in legal fees," but Justice Morgan determined that no costs order would be made and that each side deserved to bear its own costs.
A reasonable determination, of course, but less than completely satisfying in light of Justice Morgan's own observation about the cost to taxpayer.
[deleted] commented
From the case ( para4: As counsel for the Plaintiffs explains it, the Plaintiffs’ house is ringed with eleven video cameras for security purposes. Two of them are aimed directly at the Defendants’ front door and driveway. They record, 24/7/365, every movement in and out of the Defendants’ home. The Plaintiffs can see when Ms. Taerk leaves to go shopping, they can study what the Defendants are wearing every morning when they pick up their newspaper on the front step, they have a videotaped record of when Mr. Taerk goes to work or walks his dog, etc. ...
[deleted] commented
And from para5: "Nothing that the Defendants do escapes the Plaintiffs’ video camera lens .. the Plaintiff’s “security system” is as much a sword as it is a shield". Did reference to the term, "sword", imply that the surveillance was passive and not intrusive? Was the surveillance an investigation? Does Lipiec v. Borsa apply? In para10 of Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON SC) the court makes refernec to William Prosser's criteria for "an intrusion upon the plaintiff's seclusion or solitude, or into his private affairs". Is "24/7/365" surveillance of a private residence an 'intrusion'?
Good questions. As the defendants in this case showed restraint and did not pursue a kitchen-sink counterclaim, I guess we won't know. The ONCA picked up on Prosser's criteria at para 18 of 2012 ONCA 32:, as well as Somwar at para 30.