COURT FILE AND PARTIES

COURT FILE NO.: 11-52130
DATE: 2012/09/21
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J. CLAUDE LAUZON, Plaintiff

AND

GAETAN LEMIEUX, Defendant

BEFORE: M. Linhares de Sousa J.

COUNSEL: Charles M. Gibson and Ian Houle, for the Plaintiff

Bruce F. Simpson, for the Defendant

HEARD: September 6, 2012

ENDORSEMENT

[ 1 ] This motion is brought by the Plaintiff, J. Claude Lauzon, seeking the following relief against the Defendant, Gaetan Lemieux:

(a) A Declaration that the right-of-way given by express grant, registered on title of the properties of the Plaintiff and the Defendant, is in full force and effect.

(b) A Declaration that the Plaintiff has a right to use the right-of-way over parts 8 and 10, Plan 5R 8048, Ottawa.

(c) An interim, interlocutory and permanent injunction restraining the Defendant from interfering with the Plaintiff’s use of the right-of-way.

(d) Costs of this motion on a substantial indemnity basis.

[ 2 ] During the course of the argument on the motion, the parties were able to reach an agreement with respect to the first and second items of relief sought by the Plaintiff. The partial settlement reached by the parties resolved the question of whether a right-of-way existed for each of them on a mutual driveway or laneway that separates their adjoining properties. The Parties have agreed and it is so ordered as follows:

(1) The Plaintiff has a right-of-way over the property described as Parts 8 and 10, Plan 5R 8048, and

(2) The Defendant has a right-of-way over the property described as Parts 7 and 9, Plan 5R 8048.

[ 3 ] A fulsome and helpful diagram of how these two properties are situated in relation to each other can be found at para. 15 of the Factum of the Plaintiff. The effect of this agreement is that both parties have a right to use that mutual driveway without obstruction or hindrance from the other.

FACTUAL BACKGROUND LEADING TO THE NEIGHBOUR’S CONFLICT

[ 4 ] There is much detail to this story that needs not be told here. Suffice to say for a number of years these two neighbours co-existed harmoniously. Both have dwellings on their properties as well as a backyard area at the rear of their dwellings. The dwelling of the Plaintiff lies empty and is boarded up as can be seen from the photographs presented at the motion. In the past the dwelling of the Plaintiff has suffered some vandalism and had a fire that destroyed some of the building. Nonetheless, there it stands and obviously with very minimal upkeep.

[ 5 ] The dwelling owned by the Defendant is rented. The Defendant visits his property frequently and attempts to maintain it in good condition. The difference in how the two properties are maintained is again obvious from the photographs.

[ 6 ] It was not disputed that the location of these adjoining properties is very close to a shelter for the homeless, the Shepherds of Good Hope. This is an area which is frequented by homeless and transient individuals, individuals who may not have much respect for private property and property lines.

[ 7 ] It was the evidence of the Defendant that the derelict building kept by the Plaintiff and the open driveway between the two buildings has attracted squatters, who use the property, including the mutual driveway, for sleeping, sometimes drug injection, and occasionally low-level prostitution. According to the Defendant this has created a real nuisance to him and to his tenants.

[ 8 ] According to the Defendant there was some discussion between himself and the Plaintiff about putting up a fence at the entrance to the mutual driveway between their two buildings, but which both owners could open, in order to keep out the squatters and trespassers. According to the Defendant, he was under the impression that the parties had reached an agreement to do this. The Plaintiff denies that there was ever such an agreement.

[ 9 ] On his own initiative, the Defendant first built a fence across the entrance of the mutual driveway. When asked to remove it by the Plaintiff, who could not then access his backyard, the Defendant did so for a time. Subsequently, the Defendant replaced this fence with another barrier. Photographs of this barrier have been filed with this Court. A “cage” is a good description of this barrier with screws and hinges attached to the sides of both buildings.

[ 10 ] Counsel for the Plaintiff argues that his client cannot access the back of his property. Counsel for the Defendant states that the barrier can be easily removed to allow the Plaintiff access to the mutual driveway and to the back of his property. I have examined the photographs provided by both parties. I fail to see how the Plaintiff can enter the driveway and access the back of his property without physically removing the screws and hinges from the side of the two properties. In addition to blocking the right-of-way of the Plaintiff to the mutual driveway, the Defendant by installing the “cage” in the way he did trespasses on the Plaintiff’s property.

THE JURISPRUDENCE ON INJUNCTIVE RELIEF

[ 11 ] It was not disputed that the three-part test for granting an interlocutory injunction is set forth in RJR-MacDonald Inc. v. Canada (Attorney General) , 1994 117 (SCC) , [1994] 1 S.C.R. 311 (S.C.C.) as follows:

Is there a serious issue to be tried?

Will the applicant suffer irreparable harm from granting or refusing the remedy pending a decision on the merits?

Does the balance of convenience favour granting or refusing the order?

[ 12 ] In applying this law to the facts of this case, at one time, before the parties reached their partial agreement there was a serious issue to be tried, namely the question of the parties’ right- of-way. That has now been resolved. It also follows that in recognizing that each of the parties has an ownership to half of the mutual driveway and a right-of-way over the whole of mutual driveway, it must also be recognized that each of them can exercise that right-of-way without material interference from the other.

[ 13 ] Based on the evidence before me, as demonstrated graphically by the photographs, I must conclude that the “cage” erected by the Defendant, which is screwed to each building and completely blocks the Plaintiff’s access to the mutual driveway and his backyard does constitute a material interference with the Plaintiff’s enjoyment of his property and his right-of-way.

[ 14 ] I further conclude that while the “cage” remains in place, the Plaintiff, without great effort and probably expense to himself, cannot access the mutual driveway nor access the rear of his property. The Plaintiff has provided evidence that there is no other way to access the rear of his building other than by using the mutual driveway.

[ 15 ] There is no question that the Plaintiff is being denied the full enjoyment of his property rights by the actions of the Defendant. Whether the Plaintiff has an alternate way to access the rear of his building quite frankly is irrelevant, and far from proven from the photographs presented in evidence.

[ 16 ] I find there is ongoing and irreparable harm to the Plaintiff. I am not persuaded that this is a case, where the Plaintiff should wait to receive damages for the denial of his property rights which cannot be fully compensated. The Defendant has not established any of the factors set out in the case of Bellini Custom Cabinetry Ltd . v . Delight Textiles Ltd ., 2005 CarswellOnt 3868 (Ont. S.C.J. para. 131 affirm (2007) CarswellOnt 3532 (Ont. C.A.) , namely, that the injury to the Plaintiff’s legal rights is small, that the injury to the Plaintiff is capable of being estimated in money, that the injury to the Plaintiff is one which can be adequately compensated by a small money payment, and the case is one in which it would be oppressive to the Defendant to grant the injunction.

[ 17 ] The last part of the test involves examining the balance of convenience in granting or refusing the injunctive relief. The alleged nuisance claimed by the Defendant, does not in any way equally match the harm being done to the Plaintiff by denying him his recognized property rights. There is also no evidence, and in fact the evidence may be to the contrary, to show that the erection of the “cage” has prevented trespassers from entering onto the driveway and rear of the buildings. The Defendant’s unilateral actions are extreme and unlawful and may not necessarily be efficacious to his purpose.

DISPOSITION

[ 18 ] I conclude that the Plaintiff’s request for injunctive relief has merit and that he has met the legal test for such relief. There will, therefore, be an order for an interim, interlocutory and permanent injunction restraining the Defendant from interfering with the Plaintiff’s use of the mutual driveway and, more specifically,

(1) An injunction that the Defendant cease to interfere with the trespass upon the Plaintiff’s half of the driveway, namely by removing the part of the “cage” situated on the Plaintiff’s property.

(2) An injunction that the Defendant cease to interfere with the Plaintiff’s use of the subject right-of-way, namely by removing the part of the “cage” situated on the Defendant’s half of the driveway.

[ 19 ] The last issue is the question of costs. The parties shall submit to me their written submissions on the question of costs, including any offers to settle which they may have made. The Plaintiff shall have two weeks from the date of the release of this endorsement to serve and file with me his written submissions on costs, including any offers to settle which he may have made. The Defendant shall have two weeks from that date to serve and file with me his written submissions on costs, including any offers to settle which he may have made. The Plaintiff shall then have one week from that date to serve and file a reply, if he so wishes.

M. Linhares de Sousa J.

Date: September 21, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: J. CLAUDE LAUZON, Plaintiff AND GAETAN LEMIEUX, Defendant, BEFORE: M. Linhares de Sousa J. COUNSEL: Charles M. Gibson and Ian Houle, for the Plaintiff Bruce F. Simpson, for the Defendant ENDORSEMENT M. Linhares de Sousa J.

Released: September 21, 2012