COURT FILE NO.: CV-09-393959

DATE: 20120427

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAVERINA ALLEVATO

Plaintiff

– and –

TERESA KIC and KRYSTYNA KIC

Defendants

Barry Glaspell, for the Plaintiff

Jeffrey E. Feiner, for the Defendants

HEARD: February 5, 6, 7, 8 and 9, 2012

T. Mcewen J.

REASONS FOR DECISION

Introduction

[1] This action arises out of an unfortunate property dispute between the Plaintiff Saverina Allevato (“Allevato”) who owns 37 Alvin Avenue, Toronto (“37 Alvin”) and the Defendants Teresa Kic (“Teresa”) and Krystyna Kic (“Krystyna”) (collectively “the Kics”) owners of 39 Alvin Avenue, Toronto (“39 Alvin”).

[2] Alvin Avenue runs in a northerly direction commencing at St. Clair Avenue. 37 Alvin and 39 Alvin are located on the east side of Alvin Avenue. 39 Alvin is located immediately north of 37 Alvin and these properties share a property line.

[3] A description of how the two properties are connected is required in order to understand how the dispute arose between Allevato and the Kics.

[4] Beginning with the rear of the two properties, the back yards of 37 Alvin and 39 Alvin are separated by a wooden fence (“the wooden fence”) that demarcates the property line. The wooden fence ends at approximately the rear of the two homes. It runs in an east-west direction. As will be described below, the Kics removed part of the wooden fence.

[5] Thereafter, a walkway (“the walkway”) separates the two homes and continues to the front of the homes. At the front southerly corner of 39 Alvin was a wooden privacy screen (“the privacy screen”). The Kics slightly moved the privacy screen from the front corner of their house into the walkway area in 2001. The Kics later removed the privacy screen entirely. Like the wooden fence and the walkway, the privacy screen ran in an east-west direction. The privacy screen ended at approximately the area where a European Beech hedge (“the hedge”) had been planted. The Kics also removed the hedge. The hedge also ran in an east-west direction and continued along the front of the homes. It ended near the City sidewalk.

[6] It is important to note that the hedge was planted in a soil bed. The soil bed is located at the front of the homes and forms part of both 37 Alvin and 39 Alvin. It is not disputed that the hedge was planted approximately 0.11 meters to 0.19 meters north of the property line between 37 Alvin and 39 Alvin. Thus, the hedge was clearly planted on 39 Alvin, which is owned by the Kics. Similarly, the location of the privacy screen was on property owned by the Kics. The walkway is located on both 37 Alvin and 39 Alvin.

[7] Allevato commenced this action seeking a number of declarations as well as general and punitive damages. Essentially, her statement of claim seeks a declaration that the hedge, privacy screen and walkway form part of 37 Alvin and the Kics had no right to enter upon the property and conduct alterations to them. Alternatively, Allevato states that she has acquired a prescriptive right over these areas by way of adverse possession.

[8] Also, alternatively, Allevato seeks a declaration that the Kics were prohibited from removing the privacy screen and damaging the wooden fence that was located on the property line between 37 Alvin and 39 Alvin since each of the fences mark the boundary between the two properties.

[9] She also seeks general damages for damage to the aforementioned items and loss of enjoyment of them as well as punitive damages.

Overview

[10] Alvin Avenue is a street located in central Toronto near the intersection of Yonge Street and St. Clair Avenue. It contains a mixture of commercial and residential buildings. The Kics purchased 39 Alvin in 2001. Teresa has resided in the building ever since. In addition to living in the building she operates a hair salon there. The Kics lease the remainder of the building to commercial and residential tenants.

[11] Allevato purchased 37 Alvin in 2008. She rents out the main floor to a commercial tenant. She and her partner, John Morris (“Morris”), reside in the upper two floors.

[12] In 2008, the Kics obtained a property survey that confirmed their belief that the hedge and the privacy screen formed part of 39 Alvin. When Allevato purchased 37 Alvin she mistakenly believed that the hedges formed part of 37 Alvin given the fact that, amongst other things, an identical hedge was planted at or near the property line between 37 Alvin and 35 Alvin Avenue (“35 Alvin”). At first, Allevato and the Kics co-existed amicably but this changed when the Kics began to carry out certain repairs, renovations and changes to 39 Alvin in 2008.

[13] Firstly, Teresa advised Allevato that she wished to replace certain weeping tiles in the walkway between the two homes that is jointly owned by them. Allevato and Morris agreed on the condition that if anything was moved or altered it would be put back into its original place. Ultimately, Allevato and Morris agreed that certain interlocking brick could be replaced by concrete. This work was carried out without any apparent difficulty between the neighbours.

[14] Matters began to deteriorate when Teresa removed the privacy screen, which, as noted, was located at the front of her house near the property line of 37 Alvin. Allevato was under the mistaken impression that the privacy screen was on her property or, at the very least, demarcated the property line. Alternatively, she was of the view that the fence and hedge had become her property since they had been adversely possessed by previous owners of 37 Alvin. She further believed that the walkway had also become her property by virtue of the fact that it had been exclusively used by occupants of 37 Alvin for many years and so through the doctrine of adverse possession had also become her property.

[15] As a result, Allevato was of the view that the Kics could not in any way damage or alter the privacy screen or the hedge. She believed that the privacy screen, hedge and walkway all belonged to her.

[16] On May 2, 2009, Allevato noticed that workmen were removing the privacy screen. As a result, on that day she delivered a letter to Teresa, drafted primarily by Morris, setting out her concerns with respect to the privacy screen and the hedge. Subsequent to the delivery of that letter, the Kics began aggressively pursuing their changes to the exterior of 39 Alvin.

[17] In addition to removing the privacy screen in May 2009, the Kics began constructing a wrought iron fence in the backyard of 39 Alvin, immediately adjacent to the wooden fence. Without notice to Allevato, Teresa had a portion of the wooden fence removed.

[18] Notwithstanding the fact that the Kics knew that Allevato and Morris took the position that the hedge formed part of 37 Alvin, Teresa had her side of the hedge significantly pruned in early July 2009.

[19] Thereafter, in mid-July 2009, Teresa completely pruned away her half of the hedge. This left, what only can be described as, an unsightly hedge that had approximately one half remaining. More letters flowed from Allevato and Morris to Teresa over this disputed property and the work being done on it. The relationship between the neighbours continued to deteriorate.

[20] In December 2009, Teresa removed certain wooden timbers from the soil bed on her side of the property line and replaced them with cement. In the same month, workers retained by Teresa, without the authority of Allevato or Morris, attended in the rear yards at both 37 Alvin and 39 Alvin to install a gate in the wrought iron fence in the area where the wooden fence had been removed. The gate swings open onto Allevato’s property. This allowed the Kics access to 37 Alvin. When Allevato and Morris saw what was being constructed they told the workers to leave their property.

[21] On December 22, 2009, Allevato commenced this action against the Kics.

[22] The difficulties, however, continued. Notwithstanding the fact that a statement of claim had been issued, the Kics continued to destroy the hedge. In approximately October 2010, while a City of Toronto work crew was attending at 37 Alvin and 39 Alvin to remove an olive tree (that does not factor into this litigation), Teresa approached the workers and asked them to remove the hedge. I will comment more about this later, but ultimately, after a conversation between Teresa and Brian Ruffo (“Ruffo”), a City worker, Ruffo agreed to cut down the portion of the hedge on city property. He testified that he received assurances from Teresa that Allevato and Morris agreed to the removal of the hedge. This, of course, was not the case.

[23] Allevato and Morris took great exception to the removal of the hedge since they believed that Allevato owned the property on which the hedge was located and since they had commenced an action with respect to this issue. In November 2010, the Kics, themselves, removed the remainder of the hedge knowing that this would be highly offensive to Allevato and Morris. While they were removing the rest of the hedge an altercation arose, which will be discussed further below. Foul language was used, insults hurled, and ultimately both parties reported the matter to the police.

The Parties

[24] I found Allevato to be a credible witness who gave an honest accounting of her dealings with the Kics concerning the issues in the lawsuit.

[25] I did not find the Kics to be credible witnesses in a number of critical areas. For the reasons below, I have not accepted their evidence where it differs from the evidence given by other witnesses. There are simply too many inconsistencies between the evidence given by them and the evidence given by other witnesses, including independent witnesses, with respect to the issues involved in this litigation. I found critical points of their evidence to be disingenuous and self-serving.

Adverse Possession

[26] As noted above, Allevato claimed in the Statement of Claim that she obtained ownership to the hedge, privacy screen and walkway by way of adverse possession.

[27] Pursuant to sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, a person in legal possession of another’s land may obtain possessory title provided there has been legal title for 10 years. Adverse possession only applies to land governed by the Registry Act, R.S.O. 1990, c. R.20 and not the Land Titles Act, R.S.O. 1990, c. L.5. The parties agree that both 37 Alvin and 39 Alvin were registered pursuant to the Land Titles Act on October 28, 2002. Therefore, any claim for adverse possession must have matured by October 28, 2002. Accordingly, any acts of possession must have been commenced by October 28, 1992 and this is the critical time period that must be considered. Any claims for adverse possession in which possession occurred after October 28, 1992 are statute barred.

[28] Therefore, only evidence relating to the events between October 28, 1992 and October 28, 2002 is relevant to the issue of adverse possession. This raises an interesting evidentiary challenge in this action due to the fact that Allevato purchased her property in 2008 and the Kics purchased their property in 2001. Accordingly, the parties had little, if any, useful evidence on this issue.

[29] It was necessary to hear from previous home owners of 37 Alvin and 39 Alvin.

The Witnesses

[30] The following witnesses (collectively “the prior owners”) gave testimony:

1. Barbara Bloom (“Bloom”) who co-owned 39 Alvin with her husband from 1982 to 1990. She was called by the Kics to give testimony.

2. Jose Duarte (“Duarte”) who was part-owner of JM Vacations which owned 39 Alvin from 1990 to 1995. Duarte worked at 39 Alvin. He was called by the Kics to give testimony.

3. Brock Seymour (“Seymour”) who lived at 37 Alvin from 1982 to 1994. In 1989 he purchased the property from Jay Siskind (“Siskind”) who he resided with at the property. Siskind passed away in 1992. Seymour was called by Allevato to give testimony.

4. Raymond Ng (“Ng”) who owned 37 Alvin from 1994 to 2008. He sold 37 Alvin to Allevato. He was called by Allevato to give testimony.

[31] Unlike the parties in the lawsuit, the prior owners enjoyed pleasant and cordial relationships with each other. They all presented their evidence in an unbiased and straightforward manner. They were excellent witnesses.

Bloom

[32] Bloom testified that in 1986 Siskind approached her with respect to improvements at the fronts of both of their properties. At that time, the fronts of both properties were covered by driveways made up of interlocking brick, although of different types. This demarcated the property line. Siskind suggested that they move the cement planters that were located at the property line and instead install a soil bed which would be situated fairly equally on both sides of the property line. Siskind agreed to pay for all costs concerning this installation as well as the cost of the planting on it. They agreed that cedar hedges would be planted on Bloom’s side of the property line, 39 Alvin, and that flowers would be planted on Siskind’s side of the property line, 37 Alvin. Bloom testified that she found the planting bed to be an attractive addition to her property that would benefit both her and Siskind. She described it as “win/win situation.” She testified that Seymour was not involved in these discussions.

[33] In the years that followed, Bloom occasionally watered the hedges, maintained the soil bed and at one point, replaced two of the cedar hedges that had died. Bloom also testified that no privacy screen was installed at 39 Alvin when she was the co-owner of the property. She added that she and her husband periodically accessed the walkway between the properties to perform maintenance, including window washing, eaves trough cleaning and painting.

Seymour

[34] Seymour’s testimony was similar to that provided by Bloom. He recalls that he and Siskind approached Bloom and her husband with respect to landscaping improvements which consisted of installing a soil bed and planting hedges and flowers on the soil bed. Seymour also testified that the cedar hedges did not thrive and required replacement in 1992 just prior to Siskind’s death. It was at this time that a decision was made to plant the hedge in its place. Seymour testified that he obtained the permission of the owners of 39 Alvin. He could not recall whether it was Bloom or Duarte at the time. Seymour stated that the owners of 39 Alvin had agreed, otherwise the hedge could not have been planted. He recalled that there was no agreement as to whether the new hedge could be moved or damaged by the owners of 39 Alvin but that he would not have planted it if the owners of 39 Alvin could have unilaterally removed the hedge. He also recalled that he and Siskind put up the privacy screen which was attached to the corner of 39 Alvin. He recalls speaking to the owner of 39 Alvin at the time. There was an agreement that it could be placed on the front corner of the house at 39 Alvin and that it would be paid for by him and Siskind.

[35] Seymour also believed that the walkway between the two homes belonged to 37 Alvin, although he agreed in cross-examination that the owners of 39 Alvin would have had a reason to use it and would have used it. Seymour also agreed, in cross-examination, that the soil bed acted as a buffer between the driveways and the initial cedar hedge was planted on the north side because Siskind wanted flowers on the south side for aesthetic reasons. He had no information as to whether Bloom took care of her side of the soil bed or had replaced any of the hedges. He recalled that his relationship with Bloom and her husband was a friendly one.

Duarte

[36] Duarte purchased 39 Alvin from the Blooms in 1990. His testimony did not differ materially from that of Seymour. It is clear that Duarte, Seymour and Siskind enjoyed a friendly and amicable relationship. Duarte testified that he was the owner of 39 Alvin when the cedar hedge was replaced by the hedge. Duarte testified that in accepting the planting of the hedge he had “nothing to lose, only to gain” and that in his conversation with Seymour, it was agreed that the planting was being done “to beautify the area.” For this reason, he agreed to the planting of the hedge. He knew that the planting was being done on his side of the property line.

[37] With respect to the privacy screen, he testified that he agreed that Seymour and Siskind could place it on the corner of his home while he owned 39 Alvin. He recalled that he felt that the fence improved the area and helped beautify his home. In cross-examination, in response to a suggestion by Allevato’s counsel that he could not move or damage the privacy screen, he disagreed, stating that he could move or damage it. But he questioned why he would ever have wanted to do that since it was nice.

[38] In so far as the walkway is concerned, he testified that he would use it on occasion for maintenance reasons, perhaps three to four times per year.

Ng

[39] Lastly, Ng, who owned 37 Alvin from 1994 to 2008, testified that although he only lived at the property from 1994 to 1999, he continued to own it until 2008 while living elsewhere. He made arrangements to prune both sides of the hedge but he agreed that it was possible that the occupants at 39 Alvin also performed maintenance to the hedge. He and the Kics were neighbours from 2001 to 2008 without incident. He always assumed that the hedges were owned by him although the subject was not discussed. He also testified that he never tried to prevent his neighbours at 39 Alvin from accessing the hedge and he testified that it would have been impossible to do so since they had complete access to the hedge and the soil bed. He and his neighbours at 39 Alvin never discussed ownership of the privacy screen.

[40] Ng also testified that he was unaware of the fact that the Kics moved the privacy screen from the front corner of the house over, a short distance, into the walkway area in 2001.

The Law

[41] As Whitten J. stated in Sousa v. Capeloa, 2005 CanLII 44403 (ON SC) at paras. 8-10:

It is well established law that to establish a claim for adverse possession, the possession must be “open, notorious peaceful, adverse, exclusive, actual and continuous.” It is presumed that the titled owner of the land is in possession of the land in question. The person seeking to establish adverse possession must prove:

• Actual possession of the disputed property either by themselves or their predecessors for the statutory period (in this case 10 years).

• That the possession was with intention of excluding the true owner from possession.

• The effective exclusion of the true owner or owners throughout the statutory period.

(ref. Cunningham v. Zebart Estate 1991 CanLII 7283 (ON SC), [1991] O.J. No. 2027 (Ont. Crt. Justice, Gen. Div.) Aitken J., Teis v. Ancaster (Town) (1997) 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.))

Obviously, there is a contextual element to such cases. Whether or not “the possession” in question effectively excludes or is notorious relative to the true owner, depends on the use that the true owner makes or intends for the land in question; and the nature of the land itself.

The key to adverse possession is that it effectively precludes the true owner from pursuing the uses he or she would have enjoyed. (re: Teis v. Ancaster, Cunningham v. Zebart Estate, Ontario (Minister of Natural Resources) v. Holdcroft (2004) O.J. No. 4754, Madison Investments Ltd. v. Hamilton (1984) 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (Ont. C.A.))

Analysis

[42] In the context of this case, Allevato, therefore, must establish the following:

a) the predecessors on title had actual possession of the disputed property, i.e. the hedge, the privacy screen and the walkway from October 28, 1992 to October 28, 2002;

b) that possession of the predecessor owners of 37 Alvin was with the intention of excluding the owners of 39 Alvin throughout this time period, i.e. the Blooms, the Duartes and the Kics from possession of the disputed area; and

c) that the owners of 39 Alvin, throughout the relevant period, were continually excluded from the disputed area.

[43] For the reasons below, I find that the Allevato’s claim for adverse possession must fail.

[44] Although I have only reproduced certain portions of the evidence of the prior owners it was clear to me from all of the evidence given by them that there were never any steps taken by the prior owners of 37 Alvin to actually possess any portion of 39 Alvin during the relevant statutory period. The evidence did not support the notion that the prior owners took any steps to exclude the owners of 39 Alvin from the property. Any such exclusion could not have been said to have occurred throughout the statutory period, if ever.

[45] Unlike the parties to this litigation, there were friendly and amicable relationships between the prior owners of 37 Alvin and 39 Alvin. It is clear to me that with respect to the soil bed itself, Bloom and Siskind mutually agreed to create a soil bed in between their two properties. They also agreed to work co-operatively with respect to the plantings in the soil bed. There is no evidence whatsoever that there was any discussion about altering or redefining a property line or that Siskind, or Seymour for that matter, was at any time asserting such a claim. It is clear that Bloom consented to the planting on her side of the property in the context of establishing a mutually beneficial soil bed. There was never any element of adversity. Siskind, according to Bloom, seemed to acknowledge her ownership of a portion of the soil bed. Therefore, the planting of the initial hedge could not be considered to have been adverse. Accordingly, there is no aspect of the adversity required for actual possession to establish a claim for adverse possession. As stated by the Ontario Court of Appeal in Teis v. Ancaster (Town), (1997) 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.) at para.16: “The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then possession is not adverse.”

[46] Based on the evidence of both Bloom and Seymour, there was no suggestion by Seymour, or acceptance by Bloom, that the planting of the cedar hedge somehow constituted possession of Bloom’s property by Seymour. In my view, what was contemplated between Bloom and Seymour/Siskind, was that they would mutually agree, as good neighbours do, to share a soil bed in which plantings would be made. The soil bed and plantings would be located on both of their properties for their mutual benefit. In my view, nothing can turn in this context on where they agreed to plant the hedge and the flowers.

[47] The same situation evolved when Seymour and Duarte subsequently spoke of replanting the hedge in 1992. It is clear that Seymour asked Duarte for permission to do so, which Duarte happily gave. In my view, this is an acknowledgement of Duarte’s property right to the area where the hedge was replanted. Further, the same type of permission was asked for, and granted, with respect to the installation of the privacy screen in 1993. It is clear that Duarte thought that his own property was being improved. He was benefiting both from the installation of the hedge and the privacy screen without giving up any privacy rights, nor was he asked to do so.

[48] Based on the evidence, I cannot conclude that there was any act of possession by any of the predecessors of 37 Alvin over the disputed area. Even if I am wrong, any acts of possession fell well short of being open, notorious, peaceful, adverse, exclusive, actual and continuous. Based on what took place during the statutory period, it cannot be said, that any of the owners of 39 Alvin received notice that their land was being taken from them, or that they were being excluded from it.

[49] It is obvious from the testimony of Bloom, Seymour and Duarte, that they worked cooperatively to beautify their properties. Seymour and Siskind benefitted by being able to construct the hedge and privacy screen on their neighbour’s property, while Bloom and Duarte benefitted by having these alterations made without payment. In my view, nothing further was expected of Bloom or Duarte other than their permission with respect to the installation of the hedge and privacy screen. It was certainly not expected by Bloom and Duarte that they would cede portions of their property to Siskind/Seymour. Nor can it be said that Siskind/Seymour sought to expand the property line to include the areas where the hedge and privacy screen were situated. Furthermore, it cannot be inferred from Ng’s evidence that the alleged adverse ownership was in fact transferred to him through the concept of adverse possession, particularly when one has regard to the fact that for the most part, he was an absentee owner. As noted above, he was not even aware of the fact that Teresa moved the privacy screen in 2001. The fact that Ng mistakenly thought that he was the actual owner of the property where the hedge was planted is of little consequence since he clearly took no steps to exclude the owners of 39 Alvin, nor were they actually excluded. Ng, in fact, testified that the owners of 39 Alvin had complete access to both the hedge and the soil bed.

[50] Furthermore, although Allevato in her Statement of Claim pleads that the walkway formed part of 37 Alvin, the survey showed that ownership of the walkway was split between 37 Alvin and 39 Alvin. Further, all of the predecessor owners at 39 Alvin and the Kics testified that they accessed the walkway on a regular, albeit infrequent, basis. The predecessor owners of 37 Alvin did not dispute this fact and in some cases, they acknowledged it to be true.

[51] With respect to the privacy screen, it is clear that in 2001, within the statutory period, Teresa arranged to have it moved slightly from the corner of 39 Alvin into the walkway. Not only did she not seek the permission of Ng, who owned 37 Alvin at the time, but Ng was not even aware that she had moved the privacy screen. Surely such activity cannot connote “any form of possession” of the privacy screen by Ng. He did not even know what was happening to the privacy screen.

[52] Counsel for Allevato, in his closing submissions, conceded that a claim for adverse possession to the walkway and the privacy screen had not been made out in the evidence, notwithstanding the allegations in the Statement of Claim. He argued, however, that the evidence concerning the walkway and the privacy screen was supporting evidence of the claim that the area of the soil bed had been adversely possessed. I disagree. In my view, the evidence concerning the walkway and privacy screen was supportive of the Kics’ view concerning the hedge itself, in that none of the predecessor owners of 37 Alvin ever sought possession of the walkway, privacy screen or hedge. Neither did the previous owners attempt to exclude the owners of 39 Alvin from these areas or effectively exclude them from these areas. The reality is that although Siskind and Seymour paid for the installation of the cedar and beech hedges, and the privacy screen, there was never an expectation of ownership. It is clear to me that, as good neighbours do, they sought to beautify their own property and at the same time extend the benefit to their neighbours at 39 Alvin without asking for anything in return. Allevato’s claim for adverse possession with respect to the privacy screen was doomed from the outset since it was moved by the Kics in 2001. Thus, it was moved before the claim for adverse possession could have matured on October 28, 2002.

Other Arguments Raised by Allevato Concerning the Hedge

[53] Allevato also submitted in closing submissions that the Forestry Act, R.S.O. 1990, c. F.26 applied to this situation and that as the owners of both lands consented to the planting of the hedge on the property line, it was the common property of each. As such, the Kics had violated the provisions of the Forestry Act by destroying the hedge without the consent of Allevato. No cases were cited in support of this contention. The evidence clearly illustrated, however, that the hedge was planted on the Kics’ property. There was no evidence that the hedge was planted to demarcate a boundary between the two properties. The location of the planting was strictly for aesthetic purposes. This argument, therefore, fails.

[54] In closing arguments, counsel for Allevato, for the first time raised another cause of action that was not contained in the Statement of Claim. He argued that if I did not find on behalf of his client with respect to the issue of adverse possession, I should conclude that the hedge constituted a chattel and as such the Kics did not have a right to damage it. I was provided with no case law to support this argument and I can see no basis for it in law.

Damages

[55] With respect to the issue of damages, it is not necessary to analyze damages with respect to the removal of the privacy screen since any claims for adverse possession concerning the privacy screen and walkway were withdrawn.

[56] In the event that I am wrong with respect to my finding concerning the issue of adverse possession with respect to the hedge, it is appropriate for me to assess Allevato’s damages with respect to the destruction of the hedge and allocation of the soil bed.

[57] Lastly, I will analyze Allevato’s claim for damages with respect to the removal of a portion of the wooden fence and the construction of a gate on the wrought iron fence owned by the Kics that opens into the rear yard of Allevato’s property at 37 Alvin.

Damages Concerning the Removal of the Hedge and Alteration of the Soil Bed

[58] Mr. Paulo Cofloremicio provided testimony on behalf of Allevato with respect to the remediation costs of the soil bed, removal of bricks and placement of wooden timbers. He provided a quote of $750 plus H.S.T.

[59] The Kics did not call evidence to the contrary and I find the quote to be reasonable in these circumstances.

[60] With respect to the replacement of the hedge, Allevato called Peter Stevens of Humber Nurseries Landscaping Inc. Mr. Stevens, who is undoubtedly a well versed expert, estimated that 10 replacement trees would be in order at a cost of $1,299.50 per tree, including installation. In cross-examination, however, Mr. Stevens agreed that only nine hedges would fit in the soil bed.

[61] Kevin O’Neill provided expert testimony on behalf of the Kics. He estimated that seven trees would be in order at a cost of $500 per tree, plus installation, for a total cost of $5,424. I thought that both Mr. Stevens and Mr. O’Neill were well qualified, honest and earnest witnesses. The main difference between their quotes involved the number of trees involved and the cost per tree.

[62] I am prepared to accept Mr. Stevens’ evidence with respect to the number of trees that need to be planted as he conducted a more in depth measurement. Insofar as the cost of the trees is concerned, while I have no doubt that Mr. O’Neill might be able to garner a better deal than Mr. Stevens, in my view, it is reasonable to allow Allevato damages in accordance with the quote from Mr. Stevens. Mr. Stevens travelled to the nursery with Allevato and specifically inspected replacement trees and it would be fair to afford her the certainty of purchasing those trees at a known cost. Also, Humber Nurseries Landscaping Inc. provided Allevato with a guarantee regarding the health of these particular trees. Accordingly, I assess damages in this regard at $11,695.50, including H.S.T.

Diminution in Value of 37 Alvin

[63] Allevato called Arthur Parks, a well respected real estate agent, to testify with respect to the issue of the diminution in value of her home as a result of the removal of the hedge and privacy screen, but primarily with respect to the removal of the hedge. Mr. Parks testified that it was difficult to provide an estimate although he thought it would be in the range of $25,000 to $100,000.

[64] Allevato’s counsel conceded that if the privacy screen and hedge were to be replaced the appropriate remediation would erase any diminution in value claim. Since I would have ordered replacement of the privacy screen and the hedge had Allevato been successful, I therefore reduce the amount of this claim to $0.

General and Punitive Damages

[65] Allevato claims general and punitive damages with respect to the removal of the portion of the wooden fence and the construction of the wrought iron gate into her backyard as well as the destruction of the hedge. Given my findings concerning the issue of adverse possession, I find that no general or punitive damages are available with respect to the hedge, although, if I am wrong, I will assess damages in this regard. I do find, however, for the reasons below, that Allevato is entitled to general and punitive damages with respect to the circumstances surrounding the removal of the wooden fence.

[66] In order to provide some context it is important that I review the interaction between Allevato/Morris and the Kics, both with respect to the wooden fence and the hedge.

[67] As referenced above, problems began to arise after Allevato and Morris moved to 37 Alvin in 2008. It all began innocently enough when Teresa advised Allevato that she wished to install weeping tile in the walkway area. Allevato agreed and even further agreed to allow her to replace the interlocking brick with cement in the area of the walkway where the work was to take place.

[68] Matters began to deteriorate, however, in the spring of 2009. Firstly, Teresa began carrying out the work on the walkway without notice to Allevato. Teresa also advised that she had a property survey that illustrated that the privacy screen and hedge were on her property, which was true. Allevato mistakenly thought that the hedge and privacy screen were on her property or alternatively, that she had acquired a prescriptive right to them.

[69] In any event, notwithstanding this disagreement, Teresa and/or Krystyna removed the privacy screen. Over the course of the next several months, the Kics created a very hostile environment primarily surrounding the removal of the hedge. In my view, Allevato was wrong in her assertion that the privacy screen and hedge were on her property, but based on her testimony and the correspondence, she approached the issue in a civilized and reasonable way. The same cannot be said for the Kics.

[70] Firstly, in the spring of 2009, without any reasonable notice, they removed a portion of the wooden fence while they were installing the wrought iron gate on their side of the property.

[71] As indicated above, on two occasions, they pruned the hedge. The first heavy pruning took place in early July 2009 and the total destruction of one half of the hedge took place later that month.

[72] Throughout this time period the Kics knew that Allevato took the position that the hedge was on her property and that she was trying to work out a solution. The Kics, however, did not respond in any meaningful way to this issue. Rather, they significantly damaged the hedge that was at issue.

[73] The particularly egregious behaviour of the Kics commenced in the fall of 2010. After the significant pruning of the hedge by the Kics in 2009, Allevato commenced this action against the Kics. In October 2010, city workers attended at 37 Alvin to remove an olive tree that was immediately adjacent to the property and on city owned property. Ruffo, an arbourist with the City of Toronto who was the crew leader on the day in question, was called as a witness by Allevato. Ruffo testified that while he was at 37 Alvin, Teresa asked him to cut down the entire hedge. He testified that he declined on three occasions but she persisted, insisting the owners of 37 Alvin were in agreement. In Ruffo’s words, Teresa assured him that “they were in agreement.” Notwithstanding this assurance, he was still hesitant but agreed to cut down the portion of the hedge that was on the City owned portion of the property on the basis that it made some sense given it blocked some sight lines to the roadway. He also testified that Teresa did not mention that there was a lawsuit outstanding involving this hedge.

[74] Ruffo further testified that he re-attended at 37 Alvin approximately 30 days later to remove the wood that had been left behind. On that occasion, he testified that the remainder of the hedge had been removed (this is consistent with the timeline given by the parties). On that occasion, he advised that he was approached by Teresa once again. Teresa asked Ruffo if he would remove the hedge between Allevato’s property and 35 Alvin. Ruffo recalls that she knew his name on the second visit. Although he cannot recall the conversation verbatim, which is completely understandable given the passage of time and the number of houses Ruffo visits in a year, he was firm in his recollection that she was referring to the hedge between 35 Alvin and 37 Alvin. When challenged on cross-examination as to whether Teresa could have just been referring to the remaining one half of the hedge, he correctly recalled, that this could not have been the case since by this time the hedge was entirely removed.

[75] Teresa, when she testified, denied that on the first visit she advised Ruffo that the owner of 37 Alvin agreed to have the hedge removed. She denied the second visit happened at all.

[76] I accept Ruffo’s version of events. Firstly, Teresa’s evidence was contradicted by other witnesses on other issues. Furthermore, Ruffo had a good recollection of what occurred and he was a dispassionate witness with no interest in the outcome of this litigation. Finally, it is clear that Teresa’s behaviour throughout this unfortunate dispute was provocative, confrontational, and designed to escalate the animosity between the parties.

[77] After Ruffo’s first attendance, Allevato and Morris set up an appointment with the City to review the entire situation on November 9, 2010. Unfortunately, on the day before the meeting, November 8, 2010, the Kics cut down the remaining half of the hedge. This is when matters really came to a head. Although versions of what occurred differ between Allevato/Morris and the Kics, I accept the evidence of Allevato and Morris.

[78] Essentially, while Allevato was at home, the Kics began cutting down the remainder of the hedge with a small electronic saw, again without any notice to Allevato or Morris and knowing that a lawsuit with respect to the hedge was pending. I accept Allevato’s evidence that Teresa spoke to her in an inappropriate and foul manner when Allevato tried to get the Kics to stop cutting down the hedge.

[79] Allevato then telephoned Morris. Unfortunately, Morris attended at the scene and directed entirely inappropriate foul language towards the Kics as well as kicking a garbage can and throwing some woodchips up into the air. I accept his evidence that he did not direct any of the objects at Krystyna. Ultimately, both parties contacted the police. Morris was charged with an offence but it was later resolved by way of a peace bond.

[80] On the day of the incident, based on all of the evidence, Morris, Teresa and Krystyna all engaged in inappropriate behaviour and foul language. Allevato did not and there is no evidence to suggest that she acted as anything other than a peacemaker after having found herself in a very difficult situation.

[81] In any event, during this incident the entire hedge was destroyed.

[82] There are other allegations of bad behaviour that were cast about by the parties and Morris. Suffice it to say, were there any discrepancies with respect to the evidence of the other behaviour, I favoured the evidence of Allevato and Morris. For example, Teresa alleges that Morris barged into her hair salon one day and used foul language. He denies that this occurred and Teresa called no witnesses to support this claim. I believe Morris.

[83] Aside from what I have outlined above with respect to the discrepancies in the evidence of the Kics, I would be remiss if I did not also mention a few of the other significant credibility issues faced by the Kics. One of these dealt with alleged survey monuments that were in place at 39 Alvin. Tom Czerwinski (“Czerwinski”), a qualified land surveyor, had his company conduct a survey of the property line in January of 2010. At that time, no other monuments were detected even though a metal detector was used. The Kics testified that there had been a survey monument in place since 2001, even though this was not disclosed by them until the eve of the trial. I do not accept their evidence that a monument had always been in place and was somehow missed by Czerwinski’s team. In fact, I find that they planted this shortly before the litigation since its placement favoured their position in the litigation. In fact, their evidence is undermined by the fact that Mr. Czerwinski’s crew re-attended and found that the survey monument that they planted had been moved. In the circumstances, it is unlikely that it would have been moved by anyone other than the Kics to try to improve their position in the lawsuit which, ironically, did not need any assistance, given my findings above.

[84] There are other more modest credibility examples that crept up during the trial but I do not propose to refer to each and every one of them. Suffice it to say that the credibility of the Kics was severely undermined by Ruffo and Czerwinski, both of whom were neutral, uninterested witnesses to the litigation.

Assessment of General and Punitive Damages Concerning the Hedge

[85] Had I found for Allevato with respect to the issue of adverse possession, I would have awarded general damages to her for pain and suffering in the amount of $5,000 and punitive damages in the amount of $20,000 since, in my view, had Allevato been the owner of the hedge the actions of the Kics in destroying it constituted grievous misconduct and they acted in a highhanded and oppressive fashion against Allevato. Such an award is necessary to show the court’s disapproval of this type of unacceptable and intentional behaviour. These actions deserve denunciation.

Assessment of Pecuniary, General and Punitive Damages Concerning the Wooden Fence

[86] As it were, however, the only objectionable activity undertaken by the Kics against Allevato involved the removal of the wooden fence and the installation of the wrought iron gate that opened into Allevato’s rear yard. As a result of these actions, Allevato suffered a trespass to her property and loss of enjoyment of her property as a result of this trespass and the resulting nuisance occasioned by having a gate opening into her yard. As I found above, such actions were intentional and oppressive and in my view designed solely to antagonize Allevato and to provoke her. It is understandable that she was upset by these actions and that the actions are deserving of punishment.

[87] Insofar as special damages are concerned, Mr. Paul Cofloremicio also provided testimony with respect to the cost of replacing the portion of the wooden fence that was removed by the Kics. He estimated that it would cost $200 plus H.S.T. to replace the wooden fence. The Kics did not call any evidence to the contrary and I find that this is a reasonable amount.

[88] In the circumstances, I award Allevato general damages for pain and suffering that she experienced as a result of the removal of the wooden fence and the insertion of the gate in the amount of $2,500 and punitive damages in the amount of $5,000 to punish the Kics for this completely unacceptable and oppressive behaviour. In fact, I found that the Kics’ explanation as to why they installed the gate disingenuous. Teresa testified that the gate that opened up into Allevato’s property was installed in case there was an emergency and they had to exit their backyard by way of Allevato’s property. This makes no sense for the simple reason that Teresa also testified that she would be more than happy if Allevato replaced her wooden fence where Teresa had removed it to install the gate. If the wooden fence is replaced, the photographs demonstrate that there is no reasonable space between the wrought iron fence and the wooden fence for the gate to open. Clearly this explanation was another example of the unreliable evidence given by Teresa. This evidence, much like Teresa telling Ruffo to remove the hedge between 35 Alvin and 37 Alvin, defies logic. In my view, it is another example of the Kics acting in a highhanded and oppressive fashion to punish Allevato for trying to assert her claim against them for ownership of the hedge, privacy screen and walkway.

[89] It should be noted that the Kics did subsequently offer to replace the portion of the wooden fence that was removed but Allevato wanted to await the outcome of the litigation. While this may seem odd, given what has transpired between the parties, it is not unreasonable for Allevato to have refused the Kics’ offer. Certainly, Allevato could have replaced the fence herself but that would not have changed my views with respect to the Kics’ motives in removing it and installing the gate.

Disposition

[90] In closing argument, I canvassed with counsel what other orders could be made by the court to try to save these parties from further conflict.

[91] With the assistance of counsel, having received instructions from their clients during closing argument, some agreements were reached as will be evidenced below.

[92] Based on the findings above, I therefore make the following orders:

1. Allevato’s claim for a declaration that the property line between 37 Alvin and 39 Alvin is as described in the Statement of Claim or alternatively, a declaration of the property at 37 Alvin has acquired a prescriptive right as described in the Statement of Claim is dismissed.

2. Allevato’s claim for declaration that the Kics were prohibited from taking down or removing the privacy screen as described in the Statement of Claim that marked the boundary between the two properties without giving at least six months’ notice is dismissed.

3. The Kics shall pay Allevato the following amounts with respect to the removal of a portion of the wooden fence;

i) $200, plus G.S.T. to restore the fence;

ii) $2,500 in general damage for pain and suffering;

iii) $5,000 in punitive damages.

4. Although Allevato did not claim for an injunction in the Statement of Claim restraining the Kics from removing, destroying or damaging any replacement hedge or privacy screen on 37 Alvin her counsel did request such an injunction in final argument and it was fully canvassed. Accordingly, there shall be a injunction restraining the Kics or anyone acting on their behalf from removing, destroying or damaging any replacement hedge or privacy screen erected by Allevato on the property registered in her name and situated on 37 Alvin for as long as Allevato remains owner of 37 Alvin;

5. On consent, the following injunctions are ordered:

i) There shall be a injunction restraining the Kics or anyone acting on their behalf from entering onto the rear of 37 Alvin when owned by Allevato as demarcated by the wooden fence;

ii) During the time that the Kics own 39 Alvin Avenue, Allevato shall be at liberty to attend on 39 Alvin Avenue to reasonably maintain any privacy screen or hedge planted on 37 Alvin Avenue. Allevato should only attend to conduct reasonable maintenance, which would include clean up, in a reasonable fashion.

[93] Allevato shall have prejudgment interest calculated in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 with respect to the awards for general and punitive damages.

[94] If the parties cannot agree on the issue of costs, they are to contact my assistant, Eartha Reid, at 416-327-9198, to arrange for an attendance before me. At the same time, I can also be spoken to with respect to any submissions the parties may have with respect to the implementation of the above consent orders.

T. McEwen J.

Released: April 27, 2012