Q: My neighbour’s cattle have gotten out numerous times and ended up in my fields. This is annoying and they are doing damage. As well, I am doing some work in my yard and some cattle have fallen into the excavations. I want them to stay out. When I raise this with my neighbour, he just laughs it off. Is there anything I can do?
A: I agree this must be annoying, especially given your neighbour’s attitude. There are a few things you can consider doing.
Read Also
Rural emergency room closures continue to be vexing problem
Staffing issues are at the root of disruptions and closures in hospital emergency departments, both in rural and urban Canadian locations.
First, complain to the police. Some provinces and municipalities have laws governing stray animals. Repeat behaviour may result in police action.
You can also take civil action. You could sue for any loss or damage the animals have caused. This can be equally frustrating for you because collecting compensation after a judgment can be problematic and this will not stop it from happening, nor will it adjust your neighbour’s attitude.
You can sue and seek a special order called an injunction. This can be effective in controlling illegal behaviour, but is not easy to obtain. You must meet certain requirements to get this sort of relief from a judge. There are three elements that must be shown to entitle you to get an injunction.
First, you must show that you have a worthwhile case.
If you are only seeking an order to stop your neighbour from doing something, you must show the court that you have a “strong arguable case.” If you are seeking an order that makes your neighbour do something such as put up or repair a fence, you must show a stronger case called a prima facie case. This means you have to convince a court you will win the case in the end, otherwise the court won’t intervene and make the other party do anything.
The concept of “irreparable harm” is often seen as the most important and the most difficult argument to demonstrate. To obtain an injunction, the seeker must show that money would be inadequate as a remedy. For example, if someone breaches a contract with you, usually cash would be acceptable as an award for damages.
But if the breach goes to the heart of your business and could destroy it, then injunctive relief may be available. You have to be able to show that damages go beyond what the cows are doing to crops or property. You have to show larger and continuing damage that will result.
A third type of case is termed the “balance of convenience.” This is a weighing of the effect of the injunction if it is granted or if it is not granted. In your case, if the judge doesn’t do anything will this result in continuing harm to you? If the judge intervenes, that’s good for you, but does it drastically and adversely affect your neighbour? Judges carefully weigh these considerations as a last concern before deciding whether to grant this relief.
If you are successful in obtaining an injunction, most judges will require you to post an “undertaking as to damages.” This is a written promise from you to the court.
If the injunction is granted and it is ultimately shown that it shouldn’t have been granted or you lose the case, and this has resulted in monetary loss to the other side, you agree to pay them for any such loss.
For example, if the court made your neighbour put up a better fence and then you lost the case, you might have to pay for the fence.
Injunctions are an effective tool to manage the conduct of other parties during a legal dispute. However, they are complex and you need to hire a lawyer with specialized knowledge and experience to guide you through these legal waters.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
