Faiza Tariq

The defendants' custom-built home and garage encroached significantly onto the plaintiffs' neighbouring property.

The plaintiffs sought a mandatory injunction for the removal of the encroachment.

The defendants admitted trespass but sought an equitable remedy allowing them to retain the land, and brought a third-party claim against the builder, surveyor, and municipality for negligence and breach of contract.

The court declined to order an injunction, finding it would be oppressive to the defendants and that the injury to the plaintiffs was small and compensable by money.

The court ordered the severance and transfer of the encroached land to the defendants for compensation.

The court also found all three third parties liable for the encroachment, apportioning fault 70% to the builder, 15% to the surveyor, and 15% to the municipality, and ordered them to fully indemnify the defendants.