COURT FILE NO.: CV-13-00479609-0000
DATE: 20131205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
COLIN WEIDELICH, SHAWN BOIRE, CECILIA MO, JOE GILINSKY, YVONNE GILINSKY, KEN BALDIN AND PAM LEEWORTHY-BALDIN
Applicants
– and –
PIETER DE KONING and RACHNA DE KONING
Respondents
Harvey J. Ash, for the Applicants
Rahul Shastri and D. Winer, for the Respondents
HEARD: November 19, 2013
REASONS FOR JUDGMENT
Stinson J.
[1] This application concerns a dispute about a right-of-way in a modern residential row house development. The respondents are the owners of the land that is subject to the right-of-way. The applicants are the owners of adjacent properties who enjoy the benefit of the right-of-way. In general terms, the purpose of the right-of-way is to provide the applicants with access to their garages located to the rear of their houses. The complaint they advance in this litigation is that the respondents are constructing or have constructed an addition to their house that occupies part of the land that is subject to the right-of-way. They assert that the conduct of the respondents is a violation of their rights and they come to court seeking a declaration to that effect and ancillary relief. The case raises issues of law regarding the rights and obligations of the owners of properties that are subject to or enjoy the benefit of rights-of-way over private land.
Facts
[2] The parties own contiguous properties on Cottingham Street, an east-west residential street in central Toronto (the "Cottingham Development"). The Cottingham Development is comprised of six row houses that front on the south side of Cottingham Street. Each backs onto a laneway, on the south side of which stands a garage for each house. Access to the laneway is via an entrance that runs south from Cottingham Street, to the east of the respondents' house, located at No. 69 Cottingham. Various portions of the laneway pass over portions of land owned by both the applicants and the respondents and are the subject of or subject to various rights-of-way contained in their respective title documents.
[3] The Cottingham Development was constructed in the late 1990s. Until the events that gave rise to the present dispute, the owners of the various houses and garages had no material issues or disputes regarding the use of the lane, access to their garages and the legal rights and obligations associated with the rights-of-way. That situation changed, however, as a result of the decision of the respondents to construct a large addition to the house located at No. 69. The addition includes a three-story structure, an outdoor balcony on the second floor, a ground floor patio and an outdoor planter (the "Addition"). As matters stand, the Addition is largely complete, such that the residential building is finished, the balcony is largely constructed, but the patio and planter have yet to be fully installed.
[4] The great majority of the Addition is (or will be) constructed on land that is owned by the respondents and that is not subject to any right-of-way in favor of the applicants. A small portion of the newly-expanded house, part of the balcony, a large portion of the patio and all of the planter, however, encroach on part of the land owned by the respondents that is subject to the right-of-way in favor of the applicants (the "Encroachments"). At the heart of this dispute is whether, by constructing the Encroachments, the respondents have violated the legal rights of the applicants in relation to the right-of-way.
[5] The lands that comprise the Cottingham Development are in the land titles system and their ownership is subject to a registered plan, No. 350Y. Plan 350Y divides the Cottingham Development into 21 parts. The following table explains the allocation of 20 of those parts among the owners of the various houses:
| Street No. | House | Garage | Laneway | Extra Land |
|---|---|---|---|---|
| 69 | Part 6 | Part 18 | Part 19 | Part 20 |
| 71 | Part 5 | Part 17 | Part 11 | |
| 73 | Part 4 | Part 16 | Part 10 | |
| 75 | Part 3 | Part 15 | Part 9 | |
| 77 | Part 2 | Part 14 | Part 8 | |
| 79 | Part 1 | Part 13 | Part 7 | Part 12 |
[6] Attached as Schedule A to these reasons is a copy of Plan 350Y showing Part 19 outlined in a solid heavy line, and the remainder of the Parts that are subject to the rights-of-way (i.e. Parts 7 to 11) outlined in a dotted heavy line. Attached as Schedule B is a large-scale portion of Plan 350Y also showing Part 19 outlined in a solid heavy line and the portion that contains the Encroachments caused by the Addition in crosshatching.
[7] As I have mentioned, the laneway proceeds south from Cottingham Street to the east of Street No. 69, the respondents’ house. After it crosses over the public sidewalk, the laneway continues south and begins to traverse Part 19, the portion of the respondents' property that is subject to the right-of-way. As it continues to traverse Part 19, the laneway curves approximately 90 degrees to the west. The narrowest point of Part 19 over which the laneway passes is 3.6 meters wide (when measured between Part 6 – the part on which the respondents' house sits – and Part 18 – the part on which the respondents' garage sits). As it continues west, the laneway traverses over Parts 11, 10, 9, 8 and 7, which are, respectively, located between the parts on which the houses and garages relating to Street Nos. 71, 73, 75, 77 and 79 are situated. Throughout this portion, the laneway passes over rights-of-way that are 3.54 meters wide. In simpler terms, the last portion of the laneway (which is comprised of Parts 7, 8, 9, 10 and 11) is a rectangle measuring approximately 33 meters in length and 3.54 meters in width; to access that portion of the laneway, one must first traverse the right-of-way that is comprised of Part 19 including a portion of Part 19 that is 3.6 meters wide, at the northeast corner of the respondents' garage.
[8] The deeds of all of the applicants provide that they enjoy a "right-of-way over, along and upon … Part 19 … for the purpose of vehicular ingress and egress." For its part, the respondents' deed provides that it is "subject to a right-of-way in favor of the owners and occupants from time to time of [Nos. 71, 73, 75, 77 and 79 Cottingham Street] … over, along and upon … Part 19 … for the purpose of the vehicular ingress and egress."
[9] It is not disputed that part of the Addition will project into and occupy a portion of the northern edge of Part 19. To that extent, the Encroachments will amount to a permanent obstruction that would prevent anyone from driving a vehicle over that portion of Part 19. At the narrowest point, the Encroachments reduce the passable portion of the right-of-way across Part 19 to 4.4 meters in width. It is this permanent obstruction to which the applicants object and which forms the basis of their application.
[10] One of the questions raised on the materials before me is whether the Encroachments amount to an impediment to those who wish to use Part 19 to access the balance of the laneway ( i.e. that portion comprised of Parts 7, 8, 9, 10 and 11). Although some of the applicants deposed that the Encroachments made it difficult for them to navigate the right-of-way, the respondents proffered video evidence which persuasively suggests otherwise. That video evidence depicts most of the applicants driving their vehicles into the laneway, across the restricted Part 19, without any apparent difficulty. In addition, the respondents proffered photographs of large vehicles entering and exiting the laneway, together with a scaled rendering of what the laneway will look like once all work is completed, on which was superimposed a 2.13 meter wide vehicle with a 12.19 meter turning radius. As well, the owners of 75 Cottingham (who are not parties to this litigation) filed evidence indicating that the construction does not interfere with their ability to drive from the street to their garage.
[11] Based on the evidence I have described and as well based on the dimensions that are shown on various plans and diagrams filed, I find as a fact that the Encroachments caused by the Addition do not create a real or substantial interference with the use of the laneway for vehicular access: it remains as accessible and passable now as it was before the construction, subject to the obvious result that the portion of Part 19 on which the Addition has been constructed can no longer be driven over. Despite that limitation, however, it is still possible for vehicles (including delivery trucks) to traverse across the remainder of Part 19 unimpeded for purposes of accessing the remainder of the laneway.
Analysis
[12] Against the foregoing factual backdrop, I turn to the legal issues that bear upon the parties’ rights.
Positions of the parties
[13] The position of the applicants is that the construction of the Addition and the Encroachments into the right-of-way amount to a substantial and permanent structure. They argue that because the land in Part 19 is subject to a right-of-way, such a structure automatically amounts to a real and substantial interference with the right conveyed. The applicants submit that the interference is actionable notwithstanding there is no evidence that the Encroachments cause any inconvenience to them.
[14] The position of the respondents is that not every interference with the enjoyment of a right-of-way that amounts to a disturbance in law is actionable. They argue that there must be some substantial interference with the enjoyment of the right-of-way in order to give rise to a cause of action. They submit that, in the case of a right-of-way over private land – such as the one in this proceeding – an obstruction is not actionable unless there is a substantial or material impairment to the reasonable use and enjoyment of the right-of-way.
Applicable case law
[15] The leading authority relied upon by the applicants is Devaney v. McNab (1921), 1921 557 (ON CA), 69 D.L.R. 231 (Ont. Sup. Ct. – App. Div.). In that case, the majority decision was rendered by Middleton J. who said as follows:
It is well settled that the rights of the parties must be determined according to the true construction of the grant [citation omitted]; and it is to be observed that the grant here is in the widest possible terms. It follows, I think, that the grantor must not derogate in any way from his grant. Where the thing that is complained of is the erection of a substantial and permanent structure upon the land over which the grantor has already given a right of way, it appears to me to be almost impossible to say that there is not a real and substantial interference with the right conveyed.
I quite agree with the opinion expressed in several cases that the Court is not called upon to interfere where that which is done is some small and insubstantial thing which does not in truth and in substance affect the beneficial use of the right granted; but, where the plaintiff’s right depends upon the terms of a written grant, it ought not to be easy for the grantor to cut down the full extent of the privilege for which valuable consideration he has conveyed.
[16] The applicants place special emphasis on the comment of Middleton J. that it would be "almost impossible" not to characterize a "substantial and permanent structure" as a "real and substantial interference" with a right-of-way. It follows, in the applicants' submission, that any permanent structure constructed on a right-of-way is deemed to be a real and substantial interference, and therefore is actionable. In my respectful opinion, that is an overly broad interpretation of Devaney when that case is examined in its factual context, and in light of its subsequent application and other case law.
[17] In Devaney the complained-of obstruction was a fire escape constructed on an adjoining wall that – although it did not occupy space on the ground – was found to be an aerial interference which would impede the passage of loaded trucks along the laneway. In my view, the comments of Middleton J. must be considered in this light.
[18] The applicants cite a number of cases in which Devaney has been applied. These include Nuttall v. Jackson (1997), 14 R.P.R. (3d) 276 (Ont. C.J. (G.D.)); 820204 Alberta Ltd. v. McLarty (2002), 2002 ABQB 1049, 6 R.P.R. (4th) 146 (Alta. Q.B.); Albiston v. Liu, [2013] O.J. No. 3685 (S.C.J. – S.C.C.)); Chester v. Roch (1975), 20 N.S.R. (2d) 536 (N.S.S.C. – T.D.); and National Trust Co. v. Chriskim Holdings Inc. (1990) 1990 2644 (PE SCAD), 66 D.L.R. (4th) 213 (P.E.I. S.C. – T.D.). In almost all of these cases (as in Devaney) the complained-of obstruction was found as a fact to cause substantial interference with the plaintiff's right. A large number of other cases have approached the question from the perspective of assessing whether the evidence established substantial interference. I will turn to those cases presently.
[19] Based on the opening comments of Middleton J. in Devaney quoted above, the starting point in the analysis must be the "true construction of the grant". Expanding on this topic in Fallowfield v. Bourgault (2003), 2003 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), Feldman J.A. (writing for the majority) said as follows (at para. 10)
Where an easement is created by express grant, 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. This principle is set out in Halsbury's Laws of England vol. 14, 4th ed. (London: Butterworths, 1980) at p. 26, para. 54:
The true nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.
[20] By its express terms, the right-of-way in issue in the present case was created "for the purpose of vehicular ingress and egress". The right-of-way was created when the Cottingham Development was being planned and constructed. It is thus apparent that its purpose was to allow the owners of the remaining houses in the development to cross over Part 19 in order to access their garages and the street by their automobiles. This grant of a right-of-way may usefully be compared to the one in Devaney which was stated to be "at all times and for all purposes in common with all other persons entitled thereto in and over the northerly 20 feet" of the relevant lot. As Middleton J observed, that grant was "in the widest possible terms". By contrast, the grant in the present case was for a limited purpose, namely "vehicular ingress and egress".
[21] In Lewis v. Wakeling, (1923) 54 O.L.R. 647 (Ont. Sup. Ct. – App. Div.) Riddell J. (who concurred with the decision of Middleton J in Devaney decided two years earlier) considered the scope of a right-of-way over private land and said as follows (at paras. 22, 23 and 27):
- The case of Pettey v. Parsons, [1914] 2 ch. 653 (C.A.) … authoritatively states … the law:
The law is not the same with regard to a private road and a public road. In the case of a public highway there can be no lawful obstruction of the highway, no obstruction which is appreciable .… If that had been merely a private way, a grant of an easement … and there was no substantial interference with his right, the result would have been different:" per Swinfen-Eady L.J., at pp. 665, 666.
23 As Pickford, L.J., puts it (p. 668): "So long as there is reasonable access to the land" (i.e. the land over which the right of way is granted) "and a reasonable opportunity of exercising the right of way, there is not any obstruction of it, and there is no derogation from the grant;" or on p. 669"Assuming the right of access from each part of the land from which access is required to any part of the way, such access shall be given as will be reasonable ... such access as will give reasonable opportunity for the exercise of the right of way."
27 This does not imply that the defendant has the right to have this whole length, every inch of it, unfenced; but only that he may have reasonable access from his property.
[22] In my view, Lewis v. Wakeling stands for the proposition that a party in whose favor a right-of-way has been granted over private land (i.e. the dominant tenement) is entitled to access to the property over which the right-of-way is granted (i.e. the servient tenement) so as to give the owner of the dominant tenement a reasonable opportunity for the exercise of the right-of-way. In Ridge v. M. Brennen & Sons Manufacturing Co. (1915), 1915 523 (ON CA), 22 D.L.R. 594 (Ont. Sup. Ct. – App. Div.) the court was concerned with an aerial cornice that projected over the land that was subject to the right-of-way. There was no evidence that the cornice interfered with the plaintiff’s use of the right-of-way. Meredith C.J.O. stated as follows:
We think the law is plain. The only right of the [plaintiff] is a right of way; and the law is clear that, unless the cornice interferes with the reasonable use of the way, there is nothing of which the [plaintiff] can complain.
[23] To the same effect is the case of Keefe v. Amor, [1965] 1 Q.B. 334 (English C.A.) where Lord Russell said:
Where a right of way exists in respect of a strip of land it is not necessarily open to the grantee to complain of obstacles on every part of the strip; he can only complain of such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenement. … I would remark that it is sometimes thought that the grant of a right of way in respect of every part of the defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required.
[24] In Voye v. Hartley, 2002 NBCA 14, [2002] N.B.J. No. 54 (N.B. C.A.) (at para. 25) the following statement appears:
It is trite law that only a "substantial interference” by the owner of the servient tenement with the enjoyment by the owner of the dominant tenement of the right of way is actionable. In West v. Sharp, [[1999] E.W.J. No. 2298] Mummery L.J. defines what is meant by "substantial interference" at para. 35:
Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of the defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.
… Whether a particular activity amounts to a substantial interference is not a question of law but one of fact.
I accept the foregoing as a correct statement of the law of Ontario, as it applies to rights-of-way over private land.
Application of these principles to this case
[25] As previously noted, the purpose of the right-of-way in the present case was to allow the owners of the dominant tenements (the applicants) the ability to access their garages and the street by their automobiles (i.e. to drive to and from their garages and the rears of their houses). Thus the purpose of the right-of-way granted was not to enable the grantees to have access to or make use of all portions of Part 19; it was not an unlimited right to make such use of all Part 19 as they may desire. Put another way, the rights of the owner of Part 19 (the servient tenement) were limited only to the extent necessary to accommodate the rights given to the owners of the dominant tenements, i.e. to permit them to cross "over, along and upon" Part 19 "for the purpose of vehicular ingress and egress". The right-of-way contained no other limitation on the use to which Part 19 could be put by its owner.
[26] The question thus becomes whether the construction of the Addition and the Encroachments into a portion of Part 19 amounted to a substantial interference with the right-of-way enjoyed by the applicants. Bearing in mind that the purpose of the right-of-way was to permit the applicants to have the vehicular ingress and egress to the remainder of the laneway, in my view the evidence establishes that they continue to have reasonable access. The portion of Part 19 that is occupied by the Encroachments does not prevent them from using the right-of-way for the purpose for which it was intended. It may well be that they will need to make the turn behind No. 61 a bit more slowly or with more caution, but in my view that does not amount to an impairment of the right of access to and over Part 19 to which they are entitled. Rather, such right of access continues unimpeded.
[27] It follows that, in my view, the construction of the Addition and the creation of the Encroachments do not amount to a violation of the property rights of the applicants.
disposition
[28] For the above reasons, I dismiss the applicants' request for a declaration that the right-of-way has been unlawfully obstructed by the respondents. In their notice of application as amended, the applicants also sought declaratory relief in relation to certain ancillary rights claimed by them. In argument, the only ancillary right claimed related to snow removal. The respondents conceded that the applicants have a right to use the right-of-way for purposes of snow removal and access by large delivery vehicles. Subject to a declaration to that effect, the balance of the applicants' claim for relief is dismissed.
[29] In relation to costs, the parties have agreed that the unsuccessful party shall pay partial indemnity costs in the all-inclusive sum of $34,470.10. Subject to any submissions to the contrary (to be submitted within 10 days and based on any offers to settle or the contents of these reasons) I order the applicants to pay that sum to the respondents.
Stinson J.
Date: December 5, 2013
Schedule A
Schedule B
COURT FILE NO.: CV-13-00479609-0000
DATE: 20131205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLIN WEIDELICH, SHAWN BOIRE, CECILIA MO, JOE GILINSKY, YVONNE GILINSKY, KEN BALDIN AND PAM LEEWORTHY-BALDIN
Applicants
– and –
PIETER DE KONING and RACHNA DE KONING
Respondents
REASONS FOR JUDGMENT
Stinson J.
Released: December 5, 2013