Court File and Parties

COURT FILE NO.: CV-23-1367 DATE: 2024-06-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ELAINE JUDITH NOLET and JEFFREY BENOIT NOLET Applicants – and – CLEVELAND CLITUS GRANGER and NOLA GALE GRANGER Respondents

Counsel: Paula Lombardi, counsel, for the Applicants Kevin Wilbee, counsel, for the Respondents

HEARD: By videoconference, April 3, 2024

HEENEY J.:

[1] There is an old saying: good fences make good neighbours. However, it is apparent that a gate across a right-of-way, that both neighbours use as a shared driveway, makes acrimonious litigation.

[2] In this application, the applicants seek an order that said gate be removed, and that the respondents be restrained from interfering with, or otherwise obstructing, their right-of-way.

Background

[3] The applicants own a house fronting on the south side of South St. in London. The respondents own the house immediately to the west. I will refer to them as the “Nolet property” and the “Granger property”, respectively. The respondents live in their house, whereas the applicants rent theirs to tenants.

[4] The right-of-way in question has been on title dating back at least to the 1970s. It is 8 ft. in width and 75 ft. in length, running between both houses, and is situated entirely on the Granger property. Thus, the applicants are the dominant owners, and the respondents are the servient owners. It has historically been, and continues to be, used as a shared driveway by the occupiers of both houses, who drive between the houses on the right-of-way, and park in their respective back yards. It is also used for non-vehicular access to the rear of both properties since this is the only way to access the rear of either property without going through the interior of the houses.

[5] The right-of-way is registered on the title to both properties. It is described in the chain of title to the Granger property as follows:

SUBJECT TO a Right-of-Way of the fullest description for all lawful purposes and with or without animals or vehicles, to the owners and occupiers from time to time of the part of the said Lot adjoining the said lands on the east, over and upon a strip of the said lands more particularly described as follows:

[6] The legal description that follows that preamble describes the strip of land in question.

[7] The description of the right-of-way in the applicants’ chain of title is less detailed, and simply says “TOGETHER WITH a right-of-way over said Lot 16…”, and then proceeds to outline the metes and bounds description of the right-of-way. No-one has argued that this difference is material to the issues before the court.

[8] The parties have had a conflicted relationship over the years. In March 2014, the respondents installed a fence at the southerly (back yard) end of the right-of-way, which prevented the applicants and/or their tenants from accessing the parking area at the rear of their property. The applicants consulted counsel, and the respondents removed the fence.

[9] The precipitating event for this application occurred on February 6, 2023, when the respondents’ contractor constructed a gate across the entire width of the right-of-way at the northerly end. This created a barrier that stretched between the front corner of each house at the end closest to South St.

[10] Although it was suggested in the written materials that the applicants consented to the installation of this gate, I accept their evidence that they did not do so, and this point was not pressed by counsel for the respondents during argument.

[11] The applicants claim that this amounts to a substantial interference with their lawful rights over the right-of-way in that, practically and substantially, the right-of-way cannot be exercised as conveniently as before.

[12] The respondents claim that the number of homeless people and vagrants living in the neighbourhood has steadily increased in recent years, and that vagrants and prowlers are checking whether vehicles along South St. and in back yards are unlocked, in order to steal things. They claim that erecting the gate was reasonably necessary for reasons of security and does not amount to a substantial interference with the applicants’ right-of-way.

Motion to Strike

[13] As a preliminary matter, it is necessary to deal with a motion, brought by the applicants, to strike various paragraphs in the affidavits filed by the respondents. The motion is brought primarily under r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[14] The paragraphs in question refer to various interactions, more accurately described as arguments, between the parties over the years where the applicants allegedly used various racial epithets, such the “n-word”, and other verbal slurs against the respondents. The applicants deny these allegations.

[15] In 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., [1997] O.J. No. 4722 (Ont. Gen. Div.), Dambrot J. discussed the meaning of the word “scandalous” in this rule, at para. 17:

The concept of scandalousness is well defined. Scandal refers to indecent or offensive matters or allegations made for the purpose of abusing or prejudicing the opposite party, allegations which are unbecoming of the court to hear, or unnecessary allegations bearing cruelly on the moral character of an individual (See Holmsted and Gale, Ontario Judicature Act and Rules of Practice, vol. 2, p. 1196). Relevance only enters the picture if the impugned material is otherwise scandalous. If material is relevant, it cannot be scandalous (Erinco Homes Ltd., Re (1977), 3 C.P.C. 227 (Ont. Master)); but irrelevant material is not, for that reason alone, scandalous.

[16] The respondents argue that the motion must be dismissed because it is the trier of fact at the substantive hearing who is vested with discretion to determine matters of the admissibility of evidence. This argument has no merit. This matter came before me for a final determination of the application. No trial of an issue has ever been ordered. Thus, I am the trier of fact.

[17] The issue in this case is whether the gate across the right-of-way substantially interferes with the applicants’ use and enjoyment of their right-of-way. Evidence about arguments and words allegedly exchanged between the parties over the years have absolutely no relevance to that issue. The impugned passages are patently indecent and offensive allegations, which can only have found their way into the responding material for the purpose of abusing or prejudicing the applicants. These offending paragraphs are clearly scandalous and must be struck out.

[18] An order will go as asked in para. (b) of the applicants’ Notice of Motion. The applicants will also have leave to withdraw those paragraphs of their own material which, provisionally, responded to the respondents’ offensive allegations.

What Constitutes Substantial Interference With A Right-of-Way

[19] In Weidelich v. De Koning, 2014 ONCA 736 at para. 10, Doherty J.A., speaking for the court, described the circumstances under which an encroachment of some kind on a private right-of-way is actionable:

I agree with the reasons of the motion judge. The authorities he cites and others fully support the conclusion that an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant. Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), the leading English text on the topic, puts it this way, at para. 13-06:

As regards the disturbance of private rights of way, it has been laid down that whereas in a public highway any obstruction is a wrong if appreciable, in the case of a private right-of-way the obstruction is not actionable unless it is substantial. Again, it has been said that for the obstruction of a private way the dominant owner cannot complain unless he can prove injury; unlike the case of trespass, which gives a right of action though no damage be proved. In Hutton v Hamboro, where the obstruction of a private way was alleged, Cockburn C.J. laid down that the question was whether practically and substantially the right-of-way could be exercised as conveniently as before. [emphasis added in the original]

[20] Doherty J.A. provided additional guidance at para. 15:

The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc, at 257:

In short, the test, ... is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right-of-way be substantially and practically exercised as conveniently as before?

[21] It seems to me to be self-evident that a gate which entirely blocks the right-of-way at the entry point closest to the street constitutes a substantial interference with its reasonable use. The right-of-way which encumbers the Granger property grants to the owners and occupiers of the Nolet property a right-of-way “of the fullest description for all lawful purposes and with or without animals or vehicles”. Of significance is the inclusion of the word “vehicles”, which contemplates the use of the right-of-way as a driveway to facilitate access to the parking area at the rear of the Nolet’s property. It is undisputed that this is precisely one of the principal uses that this right-of-way has been put to for 50 years or more, and is entirely in keeping with the wording of the right-of-way that encumbers the respondents’ land.

[22] Prior to the erection of the gate, a driver intending to park to the rear of the Nolet property would enter from the street, drive along the driveway between the houses, and park at the rear, in one continuous movement.

[23] With a gate obstructing access, it would be necessary for the driver to stop the vehicle in front of the gate, put it in park, release the seat belt, exit the vehicle, swing the gate completely out of the way, re-enter the vehicle, drive the vehicle through the gate, stop the vehicle again, put it park, exit the vehicle, swing the gate back in place, re-enter the vehicle and drive on to the back yard and park. In my view, it is obvious that, with the gate in place, the right-of-way cannot be substantially and practically exercised as conveniently as before.

[24] In Livingston v. Millham, 2005 BCSC 1292, an identical situation presented itself. The right-of-way was over an access road by which the owner of the dominant tenement accessed his property, “WITH FULL RIGHT AND AUTHORITY of ingress and egress over the easement lands”. The owner of the servient tenement proposed to construct gates across the roadway at either end of the right-of-way, as a means of slowing down the speed of traffic.

[25] Blair J., at para. 21, made the following finding of fact:

The placing of gates at the access road and where the Easement ends at the resort property would force those using the Easement to stop their vehicles while the gates are opened, either by hand or automatically.

[26] He, therefore, concluded as follows, at para. 22:

I find that the restriction resulting from the gates as proposed by the defendants precludes full, free and uninterrupted access of the Easement, and such gates placed across the Easement would be contrary to the language of the Easement thereby constituting a substantial interference with the intended use and enjoyment of the Easement.

[27] See also, Przewieda v. Caughlin, 2015 ONSC 3770, to the same effect.

[28] The respondents rely upon Lewko v. Budd, 2019 ONSC 3594, where Conlon J. held that the erection of a gate, with a lock, on a right-of-way to a beach, did not constitute a substantial interference with the intended use and enjoyment of the easement. However, that decision is distinguishable from the case at bar, because that grant of easement was “for the passage of pedestrians” only. It may well be that a pedestrian, already on foot, and taking a few seconds to open a gate before walking through, might be seen to be experiencing nothing more than a minor inconvenience. The same cannot be said, however, for someone driving a vehicle who encounters a closed gate. There is simply no comparison between the two situations.

[29] It is noteworthy that, aside from the inconvenience of having a gate blocking seamless access to the rear parking area, there are probably financial consequences to the applicants as well. Claire Rolo is a real estate agent, who was retained in January 2023 to sell the Nolet property. This was prior to the erection of the gate. When she returned to the property in March 2023, she was surprised to find the gate across the shared driveway. In her expert opinion, the applicants would not be able to easily sell their property with a gated shared driveway, as it suggests to prospective buyers that there could be discord between the neighbours. Beyond that, common sense would dictate that the inconvenience of having to deal with a gate every time a vehicle entered or exited the property would act as a disincentive to any prospective purchaser. As a result, the property has been taken off the market until the gate issue is resolved.

[30] As already noted, the respondents attempt to justify the erection of the gate as a response to a perceived increase in vagrants and homeless people in the neighbourhood, and out of concern for the security of their residence and vehicles.

[31] There are only two specific incidents where the respondents claim that trespassers intruded onto their property. In one, it is alleged that a homeless man came up the shared driveway in or about May 2023, and filled up a big water jug from the tap on the side of the Granger’s house. Nola Granger acknowledged that this event did not cause her to fear for her safety, and “let him finish filling up the jug”.

[32] Assuming, without deciding, that this does present a security concern, it is obvious that this man would not be prevented from doing this again through the installation of the gate, because he could easily open the gate and walk through, since it is unlocked. He could also enter through the gap between the easterly gate post and the applicants’ house. That gap is created by the fact that the gate post at the easterly end is situated on the Granger property, but the Nolet’s house is situated a few feet to the east of that. The space between the houses could not be completely spanned unless the easterly gate post was placed on the Nolet’s land, immediately adjacent to their house. The gap that remains between the Nolet house and the post would easily permit the passage of an adult. The gate, therefore, has no utility in preventing intrusion from trespassers on foot.

[33] The other incident occurred in the winter of 2021/22, when the respondents found a homeless person living in a tent behind the back fence of the Granger property. They state that they caught this person in their back yard on occasion, and he said, in one incident, that “he was looking for someplace to go poop”. Since he was camping on the other side of their back fence, one might infer that he must have climbed that fence in order to enter their back yard, in which case the presence or absence of a gate at the front end of the right-of-way would be irrelevant. Even if he did walk around the block and enter from the front, the gate would not have hindered his ability to enter through the driveway, as just discussed.

[34] In Moore v. Greece (Republic), 2012 ONSC 5826, the owner of the servient tenement sought to install gates at either end of a right-of-way. The right-of-way provided access to the parking lot at the rear of the Greek embassy. The owner stated that the right-of-way creates an alley on her property, and on several occasions she contacted police with respect to people sleeping in the alley, and had to remove needles used for drug use. The gates were intended to deal with this security issue.

[35] After noting that the right-of-way had been granted “for all ordinary purposes”, and that it had been historically used for vehicular access to the rear parking lot, Polowin J., at para. 53, concluded that the erection of locked gates would constitute a substantial interference with the intended use and enjoyment of the right-of-way, “that is, for Greece to have unimpeded access from Macdonald Street to its back parking lot” [emphasis added].

[36] As to concerns regarding people sleeping in the right-of-way, and the presence of drug paraphernalia, she held that these were “policing issues” which could and should be addressed with the police.

[37] I find that the gate across the right-of-way substantially interferes with the applicants’ use and enjoyment of their right-of-way, in that it cannot substantially and practically be exercised as conveniently as before. I agree with Polowin J. that the respondents’ concerns about homeless and vagrant trespassers is something that they should address with the police. It is noteworthy that the respondents have yet to report any such concerns to the police.

[38] An order will go as follows:

• that the respondents shall have the gate removed forthwith, as asked in para. 1(b) of the Notice of Application;
• that the respondents be restrained from interfering with or otherwise obstructing the right-of-way, as asked in para. 1(a);
• that the declaration shall issue as requested in para. 1(d)(i) through (iii).

[39] Counsel for the applicants indicated that the damages claim is not being pursued, so it will be dismissed.

[40] With respect to costs, I encourage counsel to resolve that issue between themselves. If they cannot do so within 10 days, I am in a position to fix costs, given that both counsel have already filed costs outlines, provided that there are no Offers to Settle that must be considered. I ask counsel to confirm whether there are and, if so, provide copies, within 15 days.

Released: June 3, 2024 T. A. Heeney J.

COURT FILE NO.: CV-23-1367 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ELAINE JUDITH NOLET and JEFFREY BENOIT NOLET Applicants – and – CLEVELAND CLITUS GRANGER and NOLA GALE GRANGER Respondents REASONS FOR JUDGMENT Heeney J. Released: June 3, 2024