Court File and Parties
COURT FILE NO.: CV-18-77216 DATE: 2020/04/07 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: FARZANEH (FARZI) KHAZAI, Applicant AND: DAVID DISANTE and TERESA MCLEOD, Respondents
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Gigi Constanzo, for the Applicant Christopher P. Morris, for the Respondents
HEARD: December 6, 2019
Decision and Reasons
Introduction
[1] This is a dispute between neighbours over the use of a laneway owned by the respondents and subject to a right of way in favour of the applicant. The parties are unable to agree on the scope of the applicant’s rights and the obligations of the respondents not to interfere with those rights.
[2] There is a rich history of “mutual driveway” litigation before the courts of Ontario. The need to seek judicial remedies is often driven by vagueness or uncertainty in the original grant. On the other hand, it is usually symptomatic of a deteriorating relationship. While a declaration of rights or other judicial remedies may bring clarity to the legal situation, it is unlikely to resolve the interpersonal dimensions of the dispute. The court can only deal with rights and with questions of law which generally do not include manners and courtesy. No court order will eliminate the need for neighbours who share access rights to exhibit common sense and to find a working relationship.
[3] As I will describe, both parties have taken unreasonable positions. They are required to behave themselves in a manner consistent with mutual rights to use the laneway. Neither party may significantly impair the right of access by the other but mere temporary or trivial interference is not a violation of those rights. It is simply a fact of life. Two vehicles cannot use the same laneway at the same time. The owners of the land must live with the burden of the right of way including reasonable wear and tear and reasonable amounts of traffic. The beneficiary of the right must recognize that she is passing over her neighbour’s land.
Background
Description of the Properties
[4] The parties own adjoining properties with addresses on Queen Elizabeth Driveway in the City of Ottawa. The respondents own No. 68 and the applicant owns No. 70. These homes are located on a triangle of land lying south of Frank St. and east of Robert St. Enjoying a view over the Driveway and the Rideau Canal, the properties are separated from the roadway by a boulevard and a pathway which is the property of the National Capital Commission. There is no vehicle access directly from the Queen Elizabeth Driveway. Any such access must be gained by passing between the homes fronting on Frank St.
[5] The homes in question are actually constructed right behind the homes on Frank St. and share the same lot. The original lots on Plan M-4 were subdivided. 6 Frank and 70 Driveway were constructed on lot 73 while 4 Frank and 68 Driveway were constructed on lot 74.
[6] When the parcel containing No. 68 (the respondents’ property) was created it included title to the laneway between the west side of No. 4 and the east side of No. 6 Frank St. When the parcel containing No. 70 (the applicant’s property) was created, it included a right of way over a different laneway on the west side of No. 6 Frank St. At some point in time that laneway on the west of No. 6 was narrowed so that it is no longer possible to pass through it with an automobile. There have been other changes to the buildings or the way in which the laneways are used since the homes were first constructed.
[7] Here we are concerned with the laneway between No. 4 and No. 6 Frank St. That laneway is part of the property owned by the respondents and it accesses their garage. Importantly, for the history of this matter, that garage actually fills the space between the two homes. That is, it fills the space between No. 68 and 70 Driveway and is partly located on the applicant’s land. The garage touches and may be attached to the applicant’s home.
[8] If an automobile is driven down the laneway from Frank St. it would arrive at the garage between the houses. If that automobile were to turn right (west) before reaching the garage, it would arrive in the applicant’s back yard. That yard is in the space between 70 Driveway and 6 Frank.
Grant of the Right of Way
[9] As the evidence shows, it was the construction of the garage by a predecessor in title to the respondents which resulted in negotiations between the adjoining property owners and the registration of formal easements. After some negotiations, the owner of 68 Driveway obtained an encroachment agreement from the owner of No. 70. That agreement permitted the garage to occupy a portion of the lands owned by No. 70 and to fill the space between the houses.
[10] At the same time, the owner of No. 70 obtained a registered right of way over a portion of the laneway and over a small triangle of the backyard of No. 6 Frank. This was for the purpose of accessing the backyard and the back door to the property. At the time, the owner of No. 68 was Ting Ing and the owner of No. 70 was Jean Paul Ferland.
[11] The right of way in question was registered as Instrument LT239782 on August 7th, 1980. It reads as follows:
“I, TING ING … TRANSFER to JEAN PAUL FERLAND … a right of way upon that part of Lot 74 on the South side of Frank Street on Plan M-4 designated as Parts 2 on Plan 4R-3418 for the purpose of going, returning, passing and repassing with or without automobiles, horses, carts, wagons, trucks and any other vehicles laden or unladen ”
[12] There are a few oddities about this description. Given that this was a 1980 grant dealing with residential property in central Ottawa, it is odd to find a reference to horses and wagons unless it was copied from an older document or precedent. On the other hand, it does not contain wording frequently found in other grants. It does not, for example, state that the grant includes “his heirs, executors, successors and assigns” nor language specifically including “visitors, tenants, servants, workmen or any other person making lawful use of the property”. The grant does not specifically state that the easement is for the purpose of accessing No. 70 and as such the wording of the grant does not specify a dominant tenement.
[13] Despite the unusual wording, the right of way was recorded in a formal grant, required approval of the Committee of Adjustment and required a Reference Plan. The grant was stamped with Planning Act [1] approval and was accepted for registration under the Land Titles Act [2]. It appears on the Parcel Register for both properties. The land transfer tax affidavit sworn by the transferor states that it was a “grant of right of way to regularize present usage”.
Use of the Laneway and the Current Dispute
[14] Mr. Ferland has sworn an affidavit in support of the application. He deposes that the rights of way and the easement were the result of negotiation with Mr. Ng who was a previous owner of No. 68. The discussions resulting in Plan 4R-3418 and in the various easements were due to the garage being constructed partly on his land. The right of way was part of the consideration for permitting the garage to stay where it was and was to ensure he had access to his property via the laneway. He deposes that he had used the laneway in that manner during his period of ownership from 1976 until 1980 when the deed was signed and he continued to do so until he sold the property in July of 2000. It was his understanding that it was a general and unrestricted right of way so that he and anyone he invited or required to attend at his home could access the back of the house. He used the laneway in that manner.
[15] The subsequent purchasers who owned No. 70 from July, 2000 until July 2017 also used the right of way and freely passed over the laneway by car and by foot in order to get to the backyard or to park a car there. All of these previous owners of No. 70 appear to have had good relations with the previous owners of No. 68. It also appears that matters such as construction, snow removal or other activities requiring co-operation or occasioning inconvenience were discussed and resolved in an amicable manner. No one paid much attention to the boundary of the right of way as described on the plan.
[16] The respondents purchased No. 68 in May of 2017. The applicant purchased No. 70 in July of 2017. Their relationship has not been as cordial. The applicant complains that the respondents have frequently blocked the laneway by parking in it or obstructing it. They have also intimidated her by threatening her with trespass charges or legal action and have taken the position that the right of way is only personal to her. They have threatened her guests and visitors with trespass for walking on the laneway and according to the applicant, she was assaulted by Mr. Di Sante.
[17] The allegations are not one sided. The respondents allege that additions and changes over the years by various property owners have made it practically impossible to use the right of way for vehicular access. They complain that the situation was exacerbated and the burden on the right of way increased because the previous owners of No. 70 and No. 6 Frank narrowed the laneway on the other side of 6 Frank by permitting an encroachment over that laneway when the neighbour on that side built a three storey condominium. They raise unrelated issues at the front of their properties and they assert that the applicant has vandalised their vehicle, made false claims to the police and attempted to create unsafe conditions.
[18] There were proceedings against the applicant in the Ontario Court of Justice which resulted in a peace bond. The respondents rely on certain findings of fact by the Justice of the Peace. The respondents have indicated that they will continue to treat any unauthorized crossing of the boundary of the right of way onto the space in front of their garage as a trespass. They deny that the applicant can authorize visitors, tenants or other invitees to use the right of way. They accuse the applicant of damaging the laneway by dragging her garbage pails along it. They deny that the location of their own garbage bins next to the right of way interferes with it.
[19] The issues to be decided appear to be as follows:
a. For what purposes may the applicant use the right of way? b. Is the right of way only for the personal use of the owner or may she authorize others such as tenants, visitors or guests to use the right of way as well? c. Have the respondents interfered with the applicant’s rights? d. Has the applicant interfered with the respondents’ rights? e. What remedy if any should be granted?
Analysis
General Nature of a Right of Way
[20] A right of way is exactly what its name implies, it is a right to pass over someone else’s land. In this case, the right of way is a right over a defined portion of the land owned by the respondents; a right of passage over Part 2 on Plan 4R-3418. The right is what the common law described as an “incorporeal hereditament” which is to say that it is invisible. It is not synonymous with the laneway or driveway but a right to travel over the land defined in the plan.
[21] A right of way also exists for a purpose. It does not exist in the abstract. Rather, in Ontario law, it is a right to cross over one parcel of land to reach another. The land serviced by the right of way is the “dominant” land or the dominant tenement and the land subject to the right of way is the “servient” land or the servient tenement. A right of way has been defined as an easement “that “permits an owner of the dominant land to pass over some defined portion of the servient land in order to gain access to, or egress from the dominant tenement for some purpose connected with the better enjoyment of the dominant tenement”. [3]
[22] Where, as here, the right of way is the subject of a grant, the scope of the right of way depends on the proper interpretation of the document. Much like a contract, however, the document must be interpreted in context. The “nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.” [4]
[23] It is possible to create a limited right of way. Examples might be a seasonal right of way such as winter or summer access or an easement for access on foot but not by vehicle. Where there are no words of limitation in the grant, the law presumes a general right of way. [5]
The Purpose of the Right of Way
[24] In the case at bar, the grant is for the purpose of “going, returning, passing and repassing with or without automobiles, horses, carts, wagons, trucks and any other vehicles laden or unladen”. Read in context, there is no doubt that this was intended as a general right of way for the owner of No. 70 to have access to the rear of the property. Nothing in this wording suggests the right is personal to the owner nor does it suggest that the right would not include guests, tenants, trades or deliveries. To the contrary, it is a right of passage and repassage including laden vehicles and both pedestrian and vehicle traffic. This is entirely consistent with Mr. Ferland’s affidavit evidence. He understood this to be a general right of way so that the owner and anyone the owner invited or required to attend at the property could do so.
[25] It follows that the respondents have no right to limit the applicant’s use of the laneway or to threaten her guests with trespass. The applicant has the right to use the right of way for access to the premises in the same manner as any owner of residential premises might be entitled to use a shared driveway. Of course, her use must be reasonable and cannot unreasonably interfere with the respondents’ own right of use and access. The laneway over which the right of way was granted is still the respondents’ land and it is the only access to their own garage.
Limits of the Right
[26] The right of way lies over a defined portion of the respondents’ lands. It does not encompass the entire laneway and only runs across the portion of the land defined on the reference plan. While the affidavit evidence does not directly address the negotiation between the parties as it relates to the definition of Part 2, it is of note that three separate reference plans were registered. Each is said to supercede the previous plan and each was slightly different from the others.
[27] The parties were at some pains and went to considerable expense to define the land that was subject to the right of way with precision. Indeed, it was necessary to also obtain a right of way over a small triangle of land from the owner of No. 6 Frank St. It was clearly the purpose of this series of transactions that the owner of No. 70 could access the rear of that property by using the two rights of way and without using the portion of the driveway closest to the garage owned by No. 68. The respondents are correct that it is only the lands defined on the reference plan that are subject to the right of way and not their entire laneway.
[28] This does not necessarily mean that it is trespass if a user of the right of way strays over the edge of Part 2. Nor does it necessarily mean that an object placed on a portion of the laneway which is not Part 2 does not impede the right of way. Because the right of way exists for a purpose, the grant of the easement may include ancillary rights necessary for enjoyment of the right.
[29] There is a useful discussion of this concept in the Fallowfield decision of the Court of Appeal. [6] There, the trial judge had found that a fence constructed entirely on the defendant’s property interfered with the use of an easement located between two houses. The Court of Appeal disagreed, not because it was impossible for a structure located on other lands to interfere with the easement but because the purpose for which the easement was granted was for repair purposes and not to access the backyard.
[30] In Fallowfield, the Court of Appeal cites examples of ancillary rights derived from English law and described in Hallsbury’s Laws of England. For example, a person enjoying a right of way has the right to make repairs to the right of way and might have an implied right to enter on or cross the lands to make those repairs. A utility corporation with a right to run wires across property has the implied right of access to repair those wires. The question is one of necessity.
[31] Here the defendants attest it is impossible to turn a vehicle into the space behind number 70 without leaving Part 2. If that is accurate then it may be that the applicant has an ancillary right to trespass briefly on the other part of the driveway because the purpose of the right of way is access including access by vehicles. On the other hand, the applicant swears that it is possible to execute the turn without encroaching on the defendants’ property but she attests that the defendants have positioned garbage pails to make it difficult to do so even though the garbage bins are not on the right of way as such. It is not enough that it would be more convenient to make a wider turn. Necessity and not convenience is the test for ancillary rights. [7]
[32] The law imposes standards of reasonableness. The right of access to the rear of the property over the right of way carries with it such ancillary rights as are reasonably necessary to enjoy that right. The defendants must accept the burden and cannot position objects or behave in such a way as to impede or restrict that right.
[33] At the same time, the applicant must also behave reasonably. She is entitled to use the right of way and not to abuse it. She is entitled to use it and to authorize others to use it but only for the intended purpose of accessing her property. She must make all reasonable efforts to stay only on the land identified for the purpose and she must remember that the land belongs to the defendants. She has rights but they are the owners of the laneway and they have the right to peaceful an uninterrupted possession of the lands which are not subject to the right of way.
Increase in the Burden
[34] There is a principle that the servient tenement need only accept the burden of the right of way contemplated when the easement was granted. A grant of easement includes increase in usage and changes in the nature and size of vehicles but it does not include usage of a completely different kind or for a significantly different purpose. Overburdening will occur where the current use of the right of way imposes a burden on the servient tenement that interferes with the owner’s rights to an extent significantly different from that which was contemplated at the time of the grant. [8]
[35] When the right of way was granted, it was for the purpose of accessing the rear of residential property located at No. 70 including space to park a single vehicle. The grant contained no words of limitation that would preclude the owner of No. 70 renting the premises to a tenant. It makes no difference to the owner of No. 68 which occupant of No. 70 is parked there. There is only room for a single vehicle.
[36] It would be another thing entirely, if for example, the house at No. 70 was demolished and replaced by a commercial parking lot. There is no such plan. There is no evidence that the right of way has been overburdened.
[37] Similarly, the allegation that the applicant has damaged the laneway by dragging garbage pails down the lane is ridiculous. Firstly, there is no evidence of damage. But even if there was minor damage from regular use, it would not entitle the respondents to complain. The burden of a right of way includes reasonable wear and tear. The owner of the dominant tenement is entitled to repair the right of way but is not obligated to do so. A grant for the purpose of passing and repassing with horses, automobiles and laden wagons would certainly include the right to move ordinary household garbage containers out to the street.
Obstruction of the Right of Way
[38] The applicant is entitled to the right of access to her property by means of the right of way. This means that the respondents cannot unreasonably obstruct the laneway. If they park a vehicle in the laneway or place a dumpster there or otherwise make it impossible to utilize the right of way, then they are interfering with the rights of the applicant.
[39] Similarly, the applicant has no right to block the laneway. She has a right of access and egress but not the right to park a vehicle on the right of way so as to obstruct the respondents in accessing their own land.
[40] While obstruction of the right of way is a breach of rights, it is important to state that it is interference with actual use that is prohibited and not just theoretical obstruction. Parking briefly in the driveway will not be an interference with the rights of the other party if at the time in question the other party is not at home or is not in a position to exercise his or her rights. If the obstruction is fleeting and is remedied promptly on request, that would not likely give rise to a claim for damages. In general, however, neither party should be obstructing the laneway without the permission of the other except for the brief obstruction that is inevitable when one or other party is using the laneway to access their property.
Damages
[41] Both parties sought damages. I am not satisfied that damages are appropriate. In the first place, the evidence is insufficient to show that actual damages resulted from the actions of either party. In the second place, there is no evidence concerning efforts to mitigate. Finally, neither party was completely correct in the position taken before the court.
[42] This was an application and not an action. I decline to award damages.
Conclusion and Remedy
[43] Declaratory relief is appropriate in this case. I decline to grant a permanent injunction. In future if either party acts unreasonably in defiance of the rights of the other as stated by the court, either damages or an injunction or both might be appropriate.
[44] There will be declaratory relief as follows:
a. The court declares that the applicant as owner of No. 70 Queen Elizabeth Driveway is the owner of a right of way over certain of the lands attached to No. 68 Queen Elizabeth Driveway as described in Instrument LT239782 and shown on the parcel register for each property. b. The court declares that the right of way is a general right of access to the rear of No. 70 Queen Elizabeth Driveway for the owner of No. 70 and such guests, visitors, trades, tenants or other persons lawfully authorized by the owner of No. 70 to access that property. c. The court declares that neither the applicant nor the respondents are entitled to block or obstruct the other party in making use of the laneway over which the right of way was granted. d. The court declares that the burden of the right of way includes reasonable use and the applicant is not liable for reasonable wear and tear arising from such use. e. The court further declares that the parties may enter into an agreement for repair, upkeep, maintenance and snow removal in the mutual driveway but are not required to do so. f. The court recommends that the parties engage in a process of mediation with a view to regulating their affairs in the future and avoiding future litigation.
Costs
[45] The parties may make costs submissions in writing within 15 days if either party seeks costs.
[46] In the absence of costs submissions within that time, there will be no order as to costs.