2018 BCCA 99 Zhang v. Davies

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Zhang v. Davies,
	2018 BCCA 99

Date: 20180316

Docket: CA44655

Between:

Li Zhang

Respondent

(Plaintiff)

And

Benjamin Daniel Davies and Erin Naomi Richelle Davies

Appellants

(Defendants)

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Fisher

On appeal from: An order of the Supreme Court of British Columbia, dated
July 11, 2017 (Zhang v. Davies, 2017 BCSC 1180, Victoria Registry File 152057).

Counsel for the Appellants:	N.W. Lott
Counsel for the Respondent:	J.M. Hutchison, Q.C.
Place and Date of Hearing:	Victoria, British Columbia February 2, 2018
Place and Date of Judgment:	Vancouver, British Columbia March 16, 2018

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Fisher

Summary:

Appeal and cross-appeal from an order that the appellants pay damages for breach of a restrictive covenant and nuisance. The appellants argue that the restrictive covenant was unenforceable, or in the alterative that the judge erred in her assessment of damages for its breach. The respondent’s cross-appeal also challenges those damages or, in the alternative, the damages awarded for the nuisance, and also seeks injunctive relief for the nuisance.

Held: appeal and cross-appeal dismissed. The terms of the restrictive covenant were unambiguous, and judge made no error in finding it valid and enforceable. She did not err in her assessment of damages for either breach of the covenant or nuisance. The judge also did not err in declining to grant the respondent an injunction, as the relief sought was so vague as to be unenforceable.

Reasons for Judgment of the Honourable Madam Justice Kirkpatrick:

[1] This appeal concerns the validity and enforceability of a restrictive covenant registered against certain strata lots, and the damages awarded for breach of the covenant. The cross-appeal also challenges the damages award for breach of the restrictive covenant or, alternatively, the amount of damages awarded for nuisance, and seeks an order enjoining the continuation of the nuisance.

BACKGROUND

[2] The appellants, Benjamin Davies and Erin Davies, are the owners of strata lot 5. This lot is one of five in a bare land strata development in Central Saanich, B.C., originally owned by Mr. Davies’ grandparents, David and Margaret Stubbs. That development also includes the two strata lots against which the restrictive covenant in dispute is registered.

[3] On October 25, 1991, the Stubbs, as registered owners of lots 4 and 5, granted a restrictive covenant in favour of themselves in their capacity as the registered owners of lots 1, 2 and 3, the relevant portion of which reads:

No dwelling house shall be constructed on the Grantor’s Lands unless the plans and specifications of the dwelling house have been first approved in writing by the Grantee, being the registered owner for the time being of said Strata Lots 1, 2 and 3, and without restricting the generality of the foregoing the height of any improvements erected or constructed upon said Strata Lots 4 and 5 and shall not exceed the following limits:

(a) as to Strata Lot 4, the maximum height of any residence and out buildings appurtenant thereto shall not exceed the geodetic elevation of 76.9 metres;

(b) as to Strata Lot 5, the maximum height of any residence and out buildings appurtenant thereto shall not exceed the geodetic elevation of 78.7 metres.

[4] On December 5, 2000, the restrictive covenant was modified as follows:

WHEREAS by Agreement bearing date the 25^th day of October, 1991, DAVID GLEN STUBB and MARGARET LOUISE STUBBS, being the Registered Owners of Strata Lots 1 to 5 inclusive, Sections 14 and 15, Range 4 East, South Saanich District, Strata Plan VIS2217, did cause Strata Lots 4 and 5 of said lands to be charged by a Restrictive Covenant registered in the Land Title Office at Victoria under registration numbers EE131846 and EE131847, respectively, whereby no building having a height greater than that expressed therein would be permitted to be erected upon said Lots.

NOW THEREFORE THIS AGREEMENT WITNESSETH THAT the parties hereto, being all of the Registered Owners of all of the Strata Lots within said Strata Plan VIS2217, do hereby consent to the deletion from the said Restrictive Covenant the requirement that buildings erected on Strata Lots 4 and 5, Strata Plan VIS2217 be limited to a specified height.

In all other respects the said agreement shall remain in full force and effect and without limiting the generality of the foregoing, the Registered Owners for the time being of said Strata Lots 4 and 5, Strata Plan VIS2217, shall not commence the construction of a single family residence upon either of said Strata Lots without first submitting for the written approval of the Registered Owner, or Registered Owners, of Strata Lots 1, 2 and 3, Strata Plan VIS2217, the plans and specifications of such dwelling houses proposed to be erected upon Strata Lots 4 and 5, Strata Plan VIS2217.

[5] As can be seen, the effect of the modified covenant was to require that owners of strata lots 4 and 5 wishing to commence construction of a single family residence had to first submit the plans and specifications of the dwelling house for the written approval of the registered owners of strata lots 1, 2 and 3.

[6] On July 19, 2004, a further modification to the restrictive covenant was registered. The transferor is the registered owner of strata lots 4 and 5. The transferee is the owner of strata lot 2. It does not affect strata lot 3, which is owned by the respondent, Li Zhang. It restored height restrictions applicable to strata lots 4 and 5 such that the maximum ridge height of any residence and/or outbuildings on strata lots 4 and 5 cannot exceed the geodetic elevation of 80.2 metres.

[7] In 2013, Ms. Zhang purchased a home located on strata lot 3. At that time, her home had unobstructed views of the valley, ocean and mountains from its main and second floors.

[8] In February 2015, Mr. and Mrs. Davies purchased strata lot 5. They planned to build a house on their lot. They were aware of the restrictive covenant when they purchased the lot.

[9] On or about February 15, 2015, Mr. Stubbs approached Ms. Zhang and asked for her approval of the Davies’ plans. Ms. Zhang requested a copy of the plans and informed Mr. Stubbs that she would obtain advice and consider his request.

[10] Within a week, Mr. Davies provided Ms. Zhang with a copy of the plans. At that time, he requested Ms. Zhang approve the plans. However, Ms. Zhang wanted to obtain the advice of a designer as she was concerned about the effect the height of the house would have on her view.

[11] Ms. Zhang met with a residential designer, Mr. Kenneth Mar. At their first meeting, Ms. Zhang told him of her concerns and asked Mr. Mar to review the plans to see if there was any way to lower the height of the proposed building. At their second meeting, Mr. Mar told Ms. Zhang that if the Davies’ house were built as planned, it would eliminate the view from the main floor of her house. However, he said that if the Davies were to reduce the roof height Ms. Zhang would “get some views”. As he recalled, Ms. Zhang was willing to approve a roof with a “2-in-12” pitch, notwithstanding that this would not fully restore her view.

[12] The Davies commenced construction of their house on March 11, 2015. The next day, Mr. Mar wrote to Mr. Davies on Ms. Zhang’s behalf and requested a reduction in the roof height. Mr. Davies replied that he had no obligation to make any changes.

[13] Ms. Zhang filed her action on June 2, 2015. Construction of the Davies’ house completed on October 15, 2015.

[14] When the house was completed, a new issue arose: the metal roof caused a strong glare inside the east-facing rooms of Ms. Zhang’s house on sunny days. A qualified real estate appraiser, Mr. David Aberdeen, inspected the house and found the glare from the roof to be “extremely bright”, “very unpleasant” and “like having a flashlight shining in your eyes”. At trial, he was qualified to give opinion evidence on real estate values. He found the loss in value to Ms. Zhang’s property resulting from a combination of the height of the Davies’ home and glare from the roof to be $153,000, representing a loss on the order of 15% of its market value of $1,020,000.

[15] In contrast, the qualified appraiser retained by the Davies, Ms. My Phung, was asked to estimate the market value of Ms. Zhang’s home as of January 13, 2017, based on the difference between the actual roof height (“3-in-12” pitch) and the “2-in-12” pitch mentioned in Mr. Mar’s correspondence in March 2015. Ms. Phung estimated the market value based on a 2-in-12 roof pitch at $975,000 and the market value based on the existing 3-in-12 roof pitch at $965,000 and $970,000. Ms. Phung was not asked to consider the effect of the glare from the metal roof.

[16] At trial, Ms. Zhang claimed the Davies had breached the restrictive covenant and that the glare from the roof created a nuisance.

TRIAL JUDGMENT

[17] In reasons indexed as Zhang v. Davies, 2017 BCSC 1180, the judge reviewed the history of the dispute between the parties and the expert evidence as to the diminution in value of Ms. Zhang’s home.

[18] The judge first concluded that the parties’ intention in entering into the original covenant was to preserve the views of strata lots 1, 2 and 3. That intention continued, notwithstanding that the modification removed building height restrictions, because the modified covenant stated that, apart from the modifications, the original covenant remained “in full force and effect”.

[19] The judge further found that the meaning of the restrictive covenant was clear:

[57] Moreover, in my opinion, the meaning of the Restrictive Covenant is clear. It required that, before any dwelling house was constructed on strata lot 5 (part of the “Grantor’s Lands”), the Davies (as the owners of strata lot 5) first obtain the written approval by Ms. Zhang (as Grantee under the Restrictive Covenant) of the plans and specifications for the dwelling house.

[20] There was no dispute that the Davies failed to obtain written approval from Ms. Zhang.

[21] The judge rejected the Davies’ argument that the restrictive covenant was invalid and enforceable, which relied on three decisions: 585582 B.C. Ltd. v. Anderson, 2015 BCCA 261 [Anderson]; Newco Investments Corp. v. British Columbia Transit (1987), 14 B.C.L.R. (2d) 212 (C.A.); and Re Sekretov and City of Toronto (1973), 33 D.L.R. (3d) 257 (Ont. C.A.).

[22] The judge distinguished those cases and rejected the argument that Anderson changed, or intended to change, the law respecting the interpretation of restrictive covenants to the effect that, if a person is required to go outside the restrictive covenant to know what is or is not permitted, then the restrictive covenant is void and unenforceable. The judge responded:

[71] In my opinion, the terms of the restrictive covenant in Anderson are quite unlike the Restrictive Covenant. As Mr. Justice Tysoe pointed out, there was no certainty with respect to the terms of the “Rental Pool Management Agreement,” which did not even exist. Moreover, a central aspect of the covenant was an agreement to agree, which itself is unenforceable.

[72] However, unlike the restrictive covenant in Anderson, the Restrictive Covenant does not require that the parties conclude an enforceable agreement on anything. Rather, it simply requires written approval from the owner of strata lot 3 of the plans and specifications of the dwelling house before a dwelling house on strata lot 5 may be constructed. The Restrictive Covenant states clearly and distinctly the obligation imposed on the owners of strata lot 5 in relation to construction of a dwelling house on that strata lot.

[23] The judge then considered the Davies’ alternative argument that the restrictive covenant restricts the reasonable use of strata lot 5. The Davies had not filed a counterclaim seeking to have the restrictive covenant cancelled. As the judge noted, although not pleaded, their defence essentially relied on the grounds described in s. 35(2)(b) of the Property Law Act, R.S.B.C. 1996, c. 377, to justify cancellation:

35 (1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force:

…

(e) a restrictive or other covenant burdening the land or the owner;

…

(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that

…

(b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled …

[24] The judge rejected the Davies’ argument for the following reasons:

[79] When considering whether to cancel or modify (or, in this case, to enforce or not enforce) a charge, the court can take into account both subjective and objective elements. However, such consideration is not a balancing exercise. Rather, the persons in the position of the Davies must show that the reasonable use of the land (construction of a dwelling house, obviously a reasonable use) will be impeded without practical benefit unless the restrictive covenant is cancelled or not enforced – in other words, that the continuation of the restrictive covenant provides no practical benefit. It is clear that “practical benefit” can include subjective factors such as “neighbourhood aesthetics” and views. See Wallster v. Erschbamer, 2011 BCCA 27, at para. 19; 417489 B.C. Ltd. v. Scana Holdings Ltd. 1997 CanLII 4401 (B.C.S.C.), at paras. 72-74; Olenczuk v. Mooney, 2014 BCSC 825, at para. 57 (“An unobstructed view of Okanagan Lake is a factor that continues to benefit lot 2.”).

[80] As I have stated above, the intention and purpose of the Restrictive Covenant was to preserve views for strata lots 1, 2 and 3. The evidence establishes that there was a practical benefit, specifically to strata lot 3, in terms of the view and the real estate value. The property was marketed to Ms. Zhang with emphasis on the views, and they were important to her. Although Mr. Aberdeen and Ms. Phung disagree on the extent to which the real estate value of strata lot 3 is impaired by the dwelling house constructed by the Davies, even on Ms. Phung’s analysis, the value has been impaired to some extent because of the impact on the view. The Davies have failed to demonstrate that, as a result of the Restrictive Covenant, the reasonable use of strata lot 5 would be impeded without practical benefit to others.

[25] The judge thus concluded that the restrictive covenant was valid and enforceable.

[26] The judge then assessed the damages for breach of the covenant. The judge concluded that, as between Mr. Aberdeen and Ms. Phung, Mr. Aberdeen had more experience appraising residential real estate and therefore gave his opinion greater weight. She generally accepted Mr. Aberdeen’s opinion, with an important qualification. The loss of value expressed by Mr. Aberdeen included the “negative external influence” of the glare from the roof. As the judge noted, the claim in nuisance in relation to the glare, which was a separate cause of action, was appropriately to be considered apart from the breach of the covenant. In other words, the judge concluded that the damages resulting from the breach of the restrictive covenant had to be assessed from the perspective of the loss of value from the loss of the view, and not, as Mr. Aberdeen proposed, from the loss of value from the loss of view and the negative external influence of the glare from the roof.

[27] The judge ultimately inferred from Mr. Aberdeen’s report that the market value of Ms. Zhang’s property as of November 2016 was $867,000 ($1,020,000 minus the “loss” quantified at $153,000). The judge concluded that the loss had to be adjusted to reflect the loss resulting only from the breach of the restrictive covenant. As the breach accounted for the “greater proportion” of the 15% reduction in value of Ms. Zhang’s home, the judge estimated the loss to be 10% of $1,020,000 or $102,000.

[28] As for the claim in nuisance, the judge was satisfied that the elements of a claim in nuisance had been made out. She accepted the objective evidence of Mr. Aberdeen that when the glare occurred it was intolerable. However, she found the duration of the glare was unpredictable – it was contingent on weather, season and the time of day.

[29] The judge awarded Ms. Zhang $7,500 in general damages. She refused to grant an injunction that would require the Davies to reduce the reflective properties of their roof on the basis that there was no evidence tendered at trial as to what steps could be employed to achieve such a result.

ON APPEAL

[30] The Davies allege the judge erred:

(a) in her interpretation of the restrictive covenant by failing to consider its wording and the ambiguities created by the modifications; and

(b) by applying incorrect principles in the calculation of damages for breach of the restrictive covenant.

[31] Ms. Zhang cross-appeals. She alleges the judge erred:

(a) in her assessment of damages for breach of the restrictive covenant or, in the alternative, in her assessment of damages for nuisance; and

(b) in refusing the injunction.

A. Interpretation of the Restrictive Covenant

[32] Contractual interpretation raises questions of mixed fact and law which are reviewable on a standard of palpable and overriding error: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53; Housen v. Nikolaisen, 2002 SCC 33.

[33] The Davies concede the judge correctly stated the principles of contract interpretation applicable to restrictive covenants as follows:

[55] Restrictive covenants are to be construed according to the ordinary rules of contractual interpretation. The precise words used must be looked at in the context of the factual matrix at the time the document was created, taking into account the background and purpose of the document as guides to interpretation.

[34] However, the Davies contend the judge failed to have regard to the principle that restrictions on the use of the land must be clearly expressed. This Court in Goodwin v. Ridley, 2006 BCCA 581 stated that, where there are two plausible meanings that can be given to a restrictive covenant, the ambiguity must be resolved in favour of the free use of the land:

[12] It is not a matter of resolving the ambiguity. A restriction on the use of land must be clearly expressed. If ambiguity exists, it is to be resolved in favour of the free use of the land. The principle was stated in Anderson v. Dickie (1915), 84 L.J.P.C. 219 (H.L.) by Lord Dunedin at 227:

Far earlier than this it had been held that all conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom.

[13] The statement is quoted in the jurisprudence of the Supreme Court of Canada and of this Court: Noble v. Alley, [1951] S.C.R. 64, Estey J. at 74; Kirk v. Distacom Ventures Inc. (1996), 4 R.P.R. (3d) 240 ¶ 23 (B.C.C.A.); and Gubbels, at para. 13.

[35] The question for the judge was whether the meaning of the restrictive covenant was clear. She found, at para. 57, that it was. She saw no ambiguity.

[36] The Davies nonetheless argue that ambiguity was created when the covenant was modified because the height restrictions were removed and yet Ms. Zhang was still allowed to ask for a height restriction. The Davies’ argument rests on the assumption that the judge erred in finding, at para. 56, that the intention of the parties in entering into the original restrictive covenant was to preserve the views for strata lots 1, 2 and 3. This error, they say, was compounded when the judge also concluded that the intention to preserve views was continued into the modified covenant. The Davies contend there is no statement of intention to that effect to be found in the documents.

[37] In my opinion, it was not an error to infer from the terms of the original covenant that the intention was to preserve views. More importantly, I consider it was unnecessary to make that finding as the terms of the modified restrictive covenant were explicit and clear: the Davies could not construct any dwelling house without first obtaining the approval of the plans and specifications from Ms. Zhang.

[38] The Davies submit the decision in Hofer v. Guitonni, 2011 BCCA 393, supports their contention that the judge improperly “read in” a provision that the restrictive covenant was to protect views.

[39] In Hofer, the issue on appeal was whether the renovation to the defendants’ home contravened the building scheme. At trial, the plaintiffs argued that the purpose of the building scheme (including a restriction that no house or other structure was to be in excess of one storey in height) was to protect their water view. The trial judge found the words of the restriction did not clearly reveal the purpose of the restriction and was unable to find that the purpose was to protect a water view.

[40] On appeal, this Court relied on the decision of Mr. Justice Lambert in Gubbels v. Anderson (1995), 8 B.C.L.R. (3d) 193 (C.A.), which stated:

[15] Counsel for the appellants said that someone ought to be able to go into the Land Titles Office, look immediately at the land registry records and know right away exactly what effect the documents pertaining to title had. But that is not the nature of the land registry system. The nature of the system is to provide notice of any matters that affect title. The restrictive covenant is referred to and the restrictive covenant must be given the interpretation it requires as a contractual document and not an interpretation that would be given to it by a layman coming into the Land Titles Office. Sometimes some skill is required in the process of interpretation, but the most rudimentary tool of interpretation is that a document should be interpreted in the context of its own factual matrix. It must be looked at as the conditions existed at the time it was created. While purpose is not the only guidance of what it meant, its purpose at that time may be one of the guides.

[16] This document was created before the subdivision of the old Lot 1 into the new Lot 1 and Parcel A of Lot 1, and it must be interpreted as of the time it was created. It is not merely a question of looking at the precise words used in the document without any sense of the background and purpose of the document. In this case, the factual matrix and the time when the document was created are tools that must be used in giving it its interpretation.

[41] In my opinion, an application of the foregoing analysis to the facts of this case supports the judge’s ultimate conclusion. It is clear that, when the modified covenant was created, there was no height restriction in respect of lot 5. It is arguable that the removal of the height restriction broadened the basis upon which the holder of the dominant tenement (Ms. Zhang) could refuse to agree to the plans and specifications. In my opinion, it was not an error to infer that the parties’ intentions were to preserve views. However, it was not necessary to make that finding because, on the plain and unambiguous wording of the modified covenant, Ms. Zhang had to approve the plans and specifications before the Davies constructed their dwelling house.

[42] I note that it does not appear that the Davies pleaded or argued that Ms. Zhang’s approval was not to be unreasonably withheld. No such qualification appears in either the original covenant or the modified covenant. Accordingly, I say no more about it.

[43] Nor am I able to accept the Davies’ argument that the judge failed to consider ambiguities in the modified restrictive covenant.

[44] The Davies contend that ambiguity was created by the deletion of the height restriction because, although the modified covenant eliminated height restrictions, it nonetheless allowed the owner of strata lot 3 to seek a height reduction as a condition of the approval of the plans for the building on lot 5.

[45] In my opinion, such a tortured interpretation is nothing more than an attempt to see ambiguity where none exists. The judge did not find, as the Davies argue, that the restrictive covenant prohibited them from constructing a house that obstructed Ms. Zhang’s view at all. Indeed, as the judge said at para. 98, Ms. Zhang’s concerns were about the height of the proposed dwelling house “and the potential effect on her views”, and she was prepared to accommodate the Davies.

[46] Nor am I persuaded by the Davies’ argument as to the alleged differences between the original covenant (which prohibited construction without written approval) and the modified covenant (which prohibited construction “without first submitting for the written approval”) created ambiguity. I see no substantive difference between the two. But in any event, the applicable wording is that of the modified covenant and it is crystal clear.

[47] I would not give effect to this ground of appeal.

B. Damages

[48] The Davies submit the judge erred in her assessment of damages on the basis that the loss should have been assessed with regard to what Ms. Zhang, who was prepared to accept some loss of view, would reasonably have demanded for that loss. They contend that $5,000 to $10,000 would have been a reasonable demand, that amount being their appraiser’s assessment of the market value Ms. Zhang’s property would have gained had the Davies’ house been built approximately two feet less than its actual height. The Davies suggest it was contradictory to find that Ms. Zhang was prepared to accept some loss of view but to then award her damages on the basis of a comparison of no loss and her present loss of view.

[49] This submission ignores the judge’s finding that Ms. Phung’s opinion was premised in part on the Davies accepting a 2-in-12 roof pitch which, on the evidence, they were never prepared to do.

[50] The judge ultimately concluded that the fair approach to the assessment of damages for breach of the covenant was from the perspective of “the loss of value from the loss of view”.

[51] In the circumstances, I am unable to see that the judge’s assessment of the loss in market value of Ms. Zhang’s home from the construction of the Davies’ home is unfair or otherwise erroneous. Based on Mr. Aberdeen’s evidence, which the judge accepted, there can be no doubt that the value of Ms. Zhang’s home has been significantly impaired by the loss of view. Since the Davies were never prepared to consider any changes to the design of their home, it seems to me no other assessment would adequately compensate Ms. Zhang for their breach, namely the construction of the dwelling house without approval.

[52] In my opinion, the Davies have not established error and their appeal must be dismissed.

CROSS-APPEAL

A. Assessment of Damages

[53] Ms. Zhang submits the judge erred in assessing damages for breach of the restrictive covenant by effectively re-calculating the measure of damages assessed by the expert evidence by “unnecessarily separating the total impact” of the wrongful construction on the value of her home. She also argues the judge erred in awarding $7,500 for the nuisance claim when she had concluded that the expert evidence established the loss was $51,000.

[54] At trial, counsel for Ms. Zhang argued that it was appropriate to treat the Davies’ breach of the covenant as a form of private nuisance. The judge rejected that argument. She found that the loss of a view could not be characterized as an interference with the use of land so as to constitute a nuisance.

[55] As I have noted, Mr. Aberdeen assessed the loss in value of Ms. Zhang’s home at $153,000 based both on the loss of view and the glare created by the metal roof. He did not ascribe a value to the individual factors. The judge inferred that had he been asked to assess only the loss of view, the assessment “would be smaller than $153,000”. In an effort to render comparable the opinions of Mr. Aberdeen and Ms. Phung, the judge deduced that Mr. Aberdeen’s assessment of value as of November 1, 2016 was $867,000 ($1,020,000 less the “loss” quantified at $153,000). This the judge found was comparable to Ms. Phung’s assessed market value of between $965,000 and $970,000.

[56] In the judge’s view, the value she deduced from Mr. Aberdeen’s opinion had to be adjusted as his opinion included the losses attributable to the loss of view and the nuisance. She concluded that the 15% reduction in value of Ms. Zhang’s property Mr. Aberdeen ascribed to the construction of the Davies’ house should be reduced to 10% (or $102,000).

[57] As I have noted, the judge awarded Ms. Zhang $7,500 for the nuisance in respect of the glare from the metal roof.

[58] Ms. Zhang argues that the judge erred in the foregoing calculations: she should have awarded $51,000 for the nuisance because, apart from the co-mingling of the two forms of loss, the judge had accepted Mr. Aberdeen’s report and therefore $51,000 was the proper measure of damages for the nuisance claim.

[59] However, I do not read the judge’s decision to support Ms. Zhang’s position. It seems clear from the reasons that the judge was trying to compare the two expert opinions on the loss. In my opinion, the judge’s reduction in loss from 15% to 10% in Mr. Aberdeen’s report was not an acknowledgement that the 5% differential was attributable to the nuisance. Rather, I think it was an effort to simply quantify what the judge considered to be the fair assessment of the loss attributable to the breach of the covenant.

[60] I am fortified in this conclusion because the discussion in the reasons on the remedy for breach of the covenant follows the decision on the award of damages for the nuisance. In my opinion, it would make little sense to make that latter finding and then, 12 paragraphs later, even suggest that the value of the nuisance claim would be included in the 5% difference between Mr. Aberdeen’s report and the ultimate award for breach of the covenant.

[61] The judge’s assessments of damages are factual findings to which deference is owed. In my view, Ms. Zhang has not demonstrated any error sufficient to justify disturbing them.

B. Injunction

[62] Ms. Zhang submits the judge erred in refusing injunctive relief “to terminate the nuisance” on the basis that there was no evidence that any steps could be imposed to “reduce the reflective capabilities and nature” of the Davies’ roof.

[63] Ms. Zhang submits the burden is on the Davies to determine how and by what means they will cease continuation of the nuisance and all that need be made is an order prohibiting the Davies from continuing their nuisance.

[64] Ms. Zhang acknowledges that the decision whether to grant or refuse an injunction is discretionary.

[65] In my opinion, the order suggested by Ms. Zhang is so vague as to be unenforceable and would invariably lead to further litigation. In my opinion, the judge was correct to reject the application for an injunction: see Liu v. Hampton’s Golf Course, 2017 ABCA 303 at para. 24.

[66] Nor am I persuaded that, in the absence of an injunction, the damages for the nuisance should be increased. In my view, it cannot be said that the nuisance award was so inordinately low that it deserves appellate interference.

SUMMARY

[67] I would dismiss both the appeal and the cross-appeal. I would order that each party bear their own costs of both appeals.

“The Honourable Madam Justice Kirkpatrick”

I AGREE:

“The Honourable Madam Justice Newbury”

I AGREE:

“The Honourable Madam Justice Fisher”