ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-290051SR
DATE: 20131223

BETWEEN:

MARIA EDUARDA SOARES,

Plaintiff

– and –

CAFÉ REGIONAL BAR AND GRILL INC. and NOSSO TALHO INC. and NOSSO TALHO PARTNERSHIP,

Defendants

Mario Jorge Paiva, Counsel for the Plaintiff

J. Jerome Cusmariu, Counsel for the Defendants Nosso Talho Inc. and Nosso Talho Partnership

No one appearing for the Café Regional Bar Grill Inc.

HEARD: SEPTEMBER 23, 25, 26, and 27, 2013

JUDGMENT: GREER J.:

[1] The Plaintiff, Maria Eduarda Soares (“Soares”) and the three Defendants, Café Regional Bar and Grill Inc. (the “Café”), Nosso Talho Inc. (“Talho”) and Nosso Talho Partnership (“Talho2”) are neighbours in the area of 1326 Dundas Street West and 10 Coolmine Road in Toronto. The Café operates a Café fronting on Dundas Street, as does Talho, which is a butcher shop and grocery store. The Talho2 operates out of those premises on Dundas. The buildings occupied by all 3 back onto a laneway and right-of-way, with Soares’ home on Coolmine Road also backing onto the same right-of-way. Vehicles come in and out of the laneway, and use the right-of-way to access the back doors and entrances of the Café and Talho. Soares uses the laneway and right-of-way to access her garage at the back of her home.

[2] The parties are not exactly “friendly neighbours”. The litigation in this matter has been in the Court system since 2005. Soares’ new counsel began acting for her in 2012 and the Talho Defendants’ new counsel began acting for them in 2009. There has, therefore, been an ebb and flow to the litigation over the years. The Plaintiff in her Amended Statement of Claim asks for the following relief:

(a) General, punitive and exemplary damages in the amount of $50,000

(b) A permanent injunction preventing the Defendants from using and parking on the Soares’ legal right-of-way

[3] None of the litigants know the history of when the property became a right-of-way. I asked Counsel for Talho to do a title search to determine this, as all of the litigants’ property deeds make reference to the right-of-way and the owner’s right to use it. A deed from the 1930’s turned up with the name of someone who owned the laneway and the right-of-way. Various Quit Claim Deeds by other owners abutting it, ceded their rights to that owner. That owner may have lost it in the Depression, as no one appears to own the fee simple in it. None of the litigants can say who pays the taxes, if any, on it. The users have to clear snow and maintain it, I am told, although none of the Deeds I examined say this.

[4] Soares has many complaints about the behaviour of Talho in allowing their customers to park vehicles and leave them in the right-of-way, while entering the shop from the back door, thereby blocking her way out of her garage to the street. She says Talho also parks its company vehicles there. She says they refuse to move these vehicles. She says they place their garbage bins in the laneway, thereby obstructing the entrance and exit. She claims that she has had to miss medical appointments because cars have parked in the right-of-way for up to 4 hours.

[5] When she was working, she says she was late for work on occasions where these cars blocked her exit. She says there is a garbage problem at the back of the butcher shop, which attracts insects and rats. She claims that Talho’s employees have been rude and belligerent to her. She sees Talho’s lights and camera as an intrusion on her privacy. She says they have placed “steel nails and other sharp objects at or near her garage with the sole objective of causing damages to her tires.”

[6] The Talho Defendants say that Soares is not entitled to the relief she is requesting the Court grant her. They say that the right-of-way is big enough for several vehicles without impeding Soares’ access to her garage. They deny that they have interfered with such access. They deny that their lights and security camera are aimed at her house. They say they installed these because of Soares’ complaints about customers of the butcher shop parking their vehicles in the laneway.

[7] Talho says that Food and Inspection Reports of the Toronto Public Health Department consistently assess the Talho Defendants with a “Pass”. They deny that Soares has suffered any damages or if there is any, it is so remote as to be unrecoverable at law.

[8] The Talho Defendants have brought a Counterclaim against Soares. They ask the Court for a permanent injunction enjoining her from attending within 50 metres of the butcher shop properties and from communicating in any way directly or indirectly with them or their employees and agents. They also ask for an Order for damages for loss of profits, harm to reputation and goodwill, property damage and punitive and exemplary damages in the amount of $50,000.

[9] They then say that Soares has caused damages to them in the amount of $500,000, the full particulars of which will be provided before Trial. They speak of Soares’ verbal abuse of their customers, her intimidation of their staff, her taking of pictures of their customers and employees, her “attack” on an elderly customer, their loss of customers’ business because of her. They says Soares frequently makes harassing complaints and calls to public authorities to attend at the butcher shop and make inspections or the parking authorities to charge supply trucks for parking while on delivery.

[10] The Talho Defendants further say that Soares, herself, has blocked the laneway when she tries to stop the deliveries and egress into the area behind her home and garage. Some of these complaints go back to 2004/5. They claim she topples garbage bins, knocks pylons over that construction crews have placed in the right-of-way, placed posts in the laneway preventing a neighbour from access to his garage.

[11] Soares denies all of the allegations made against her in her Statement of Defence to the Counterclaim. She says she is the dominant tenant and the others are subservient tenants.

The evidence of Soares

[12] Soares purchased her property on March 26, 1997. She rented the house to tenants for 5 years thereafter and moved into the property in 2002. Soares was aware of the right-of-way from the beginning, as her Deed reads in part:

TOGETHER WITH a right-of-way at all time for all persons entitled thereto over, along and upon the northerly one foot of the easterly forty-five feet (45’) of the parcel immediately the south of the herein described parcel:

AND TOGETHER ALSO WITH right-of-way over those parts of Lots 26 and 27 according to said Plan No. D-158 which may be more particularly known and described as follows:

This is followed by 11 paragraphs of description as to the other areas the right-of-way touches upon, as it is a very irregular shape. Exhibit 4 at Trial is a Plan of Survey of the right-of-way that shows the entrance from Rusholme Road, where the width of the laneway is 10 feet. At its widest, the right-of-way is 32 feet, 2 inches.

[13] It is Soares’ evidence that she was told that no one could block the right-of-way. She said her tenants were aware of it. When Soares moved into the home with her husband, she used the garage for her car and her husband parked his truck beside the garage. She says she never had any conversations with the Defendants before she moved in.

[14] She admits that she calls the Police if she thinks cars are illegally parked in the right-of-way. She says that Talho puts out large garbage bins plus those from the city and smaller bins in the right-of-way, which can block that access along the south side. In addition, she says that cars park there as well where the right-of-way abuts the 3 Dundas properties. She says that when her sister was ill and she had to out, her car would be blocked. When she spoke to the employees of Talho about these blockages, she said that she was threatened by 3 different employees. She says the police were called and one employee was charged.

[15] Soares does not understand, she says, why the cars park in the right-of-way instead of on Rusholme or Dundas Streets. Soares produced as Exhibits, 14 pictures she had taken over the years in question from 2005 and onward. They are taken at different times of the year, some with a white van parked in winter and summer, a large white cube truck parked and being unloaded by the employees, garbage bins overloaded and of all sizes, bins in the middle of the right-of-way, bread plastic crates stacked up 4’ of more up the wall of the Dundas properties, the white van parked with employees washing it, the same white van totally blocking the 10 foot driveway out to Rusholme, and lastly one dated June 30, 2011 where the white van and a car completely block the exit/entrance to Rusholme. One photo shows a leaky garbage bag oozing something on the right-of-way. She has called the health authorities and says the smell can be bad in warm weather.

[16] Soares says the white van has the Talho logo painted on it. She says that the butcher shop has a “harness” used to lift meat from the big truck and the unloading creates blockages for her when she is trying to exit from the back of her property. She says once when she knocked on the doorway of the butcher shop to ask them to move a vehicle, the employee threatened to kill her. She was also told, she says, to just call the Police.

[17] Soares’ evidence about the camera and the light is that they were installed around March 2004. She said at nights the light shone into her house and she had cataracts, so was very bothered by the bright light. She says the camera faces her bedroom window and she finds it intrusive. She says she has complained to the surveillance company.

[18] Soares says that all this is causing her great stress. She says her blood sugar rose and she feels nervous, anxious and once had to go to the hospital. When she was asked whether she had assaulted a male customer of the butcher shop, she admits she “gave him a shoulder.” He called the Police, she says, and followed her up to her porch.

[19] Soares admits that the Defendants paved the entranceway early on after she moved in. She says, however, that they threw nails near her garage so she would drive over them. She now puts flower pots along one edge of the driveway by her garage where she parks. She says she turns after driving in and backs in so she can drive straight out. She says she wants no one to block the driveway for more than 5 minutes.

[20] On cross-examination, Soares admits that she did not see anyone throw the nails. She claims her tires were damaged. She was unsure if that was in 2004 when there was construction taking place in the area. She says that for years she worked the night shift and when she would come back in the early morning, there would be bins blocking her way. When asked if she ever wrote a letter, her answer was that she got a lawyer, Dov Tal, who did start the Claim for her. When he left the area, she says, Jeffrey Goldman became her lawyer but he took sick in 2009. She admits that she received his file but as she says, “I don’t know how to read English or write English”, so she could not write to Talho.

[21] When Talho’s counsel produced copies of Deeds of other persons affected by the right-of-way, Soares had to admit that she was not the only one who had rights in connection with ingress and egress. She stubbornly refused to admit that she said, in her Claim, that the Talho Defendants did not have a legal right to drive over the right-of-way. Finally, after prompting from her lawyer, Soares admitted that Talho did have that right.

[22] The Talho Defendants produced 37 photos taken by them, including many of them taken facing Soares’ garage and back yard. All were presented to Soares to look at and examine. Some showed the garbage bins neatly in place. Some showed the back doors from the Dundas properties opening on to the right-of-way. Others showed employees standing in the right-of-way with a car between them to show how wide it is at one point. One even showed the cube truck parked so that a car could go by. Others showed employees measuring or standing in the right-of-way to show the space available. Soares says she did not know the width at various spots but some of the pictures showed the width on a measuring tape across the area. She could not give any estimates as to widths and depths of the stacking crates or blue bins.

[23] Soares knows that the new BFI bins are picked up twice a week and that they have to be rolled out to Rusholme Road, given the fact that the truck cannot use the right-of-way. She says that the garbage also attracts mice which she has seen in the space where the garbage bins are stored. She produced a photo dated September 7, 2009, showing a dead mouse.

[24] When she was asked about what the neighbours complain about, Soares says they all go to work early in the morning with some leaving as early as 6:00 a.m. and are gone during business hours so the problems with the parking in the right-of-way, does not bother them.

[25] Soares agrees that Silva owns 4 houses along Rusholme but these are not on the Survey showing the right-of-way. She agrees that the businesses along Dundas that back on the right-of-way use it for deliveries. She agrees that 10 persons including herself have a right to use it. She agrees that she had her garage rebuilt in 2005, using J.F. Construction to do the job.

[26] Soares denies having blocked supplier trucks in the right-of-way on May 30 and June 4, 2003. With respect to the camera and lights that bother her, she conceded that the lights come on at night when anyone drives by the camera in the area. When she was examined about the pictures taken by her and the distances between the walls and a vehicle parked next to the wall, she claims not to know what the distances are. She did produce an Invoice for the replacement of her tires at a cost of $528, including balancing the tires. She claims this was done after the tires were damaged going over the nails.

Evidence of Darcy Silva

[27] Darcy Silva (“Silva”) is the son of Francis Silva, who is a 29% owner of the partnership #873227 Ontario Inc. There are 3 partners in this venture. The business began in 1975 at 1326 Dundas Street West, and expanded later into 1324 Dundas Street West. It further expanded in 2003 into 1328 Dundas Street West. All three properties back onto the right-of-way. The other persons involved in the partnership with Silva and Francis Silva, are Julio Lima, David Lima and Robert Lima. Silva works daily at the butcher shop/grocery store. The business opens at 7:00 a.m. and closes at 7:00 – 8:00 p.m. He confirms that they receive their products from suppliers who back their trucks through the laneway and. It takes them 5-15 minutes to unload. The laneway is 10 feet wide, and their van is 6 feet wide, he says.

[28] He says that customers pick up orders at either the front entrance or the back entrance. Silva claims that their business vehicles do not part in the laneway. He says they have a van, which is used for deliveries. It is his evidence that no one other than Soares has complained about parking in the right-of-way. He says, “We have a great relationship with our customers” and we know all our neighbours. He says that their van, when picking up at the back, does not stay there more than 15-20 minutes. It normally parks at the back of 1326 or 1328 Dundas Street West.

[29] Soares had given evidence that her tenant, who rented from her before 2002, had a run-in with the Talho employees. Silva says this is not so. He again says that Soares is the only person Talho has had trouble with concerning the right-of-way. He identifies the large truck as that of Holly Park Meatpackers Inc. (“Holly Park”). He says they tried to deal with the problem of the garbage bins rolling into the right-of-way. He agrees that the bins are washed out in the right-of-way because there is a drain there.

[30] Silva identifies a photo taken on September 24, 2013, which shows 2 men in the right-of-way with their arms extended sideways, where the large bin sits. It shows that a regular car can pass with room there. It can also pass if the large cube truck parks further back. There is also a picture of a fly-trap that Talho installed with a bait station to control the flies. Silva also confirms that Soares, in 2003, twice blocked the big truck from leaving and called the Police, who did not do anything except tell her to move her car. Silva presented an Invoice from Holly Park dated June 6, 2003 in the amount of $802.50 for the 2 police incidents and the delay they had. He says that since this incident, all deliveries are now through the front door. He says those deliveries are in a no-parking zone out front, which can result in parking tickets being issued.

[31] Silva says that they have lost customers as a result of Soares’ actions if they try to pick up orders from the back. He says she yells at such customers. He says they installed “No Parking” signs but they kept being taken down. Silva says the camera and lights are only activated when there is motion in the vicinity. He presented pictures to show the location on their buildings. He says they are activated for about 30 seconds. He says the camera no longer works and the flood lights are not angled towards her home. As for the mice, Silva says he has not seen any and they have pest control people come once per month. He says biological waste is picked up twice per week.

[32] Silva, when presented with a copy of Soare’s former lawyer’s letter dated January 11, 2005, could not recall seeing it but says Talho did stop having deliveries made in the right-of-way around May 2005 after the Statement of Claim was issued. He says that meat is dropped off on a daily basis and it would take about ½ hour to deliver it.

[33] With respect to the width of the right-of-way, which varies depending on location. Silva admits that in certain spots it would be difficult for 2 cars to pass.

Evidence of Jose Sequeira

[34] Jose Sequeira (“Sequeira”) owns Atson Construction. He has known Soares for 12 years. He did the garage construction for her and some cement work. He says he spent 4-5 weeks there around 2002/3. He says he has no trouble accessing Soare’s garage with his truck via the laneway, and he brought his tools and materials in that way. He says he also does work for Talho and has never had a problem with the right-of-way. He says that at the widest part, which is 32 feet, there is no problem with a truck parked at the side.

[35] Sequeira says that the large bin is kept along the wall and it is kept closed. He says he has never smelled odours from the bin nor has he seen mice in the area. He has also observed the fly trap on the wall. He says he parks in the same spot when he works for Talho that he did when he worked for Soares. He acknowledged on cross-examination that there can be a narrow area to go by depending on where the truck or van is parked along the side of the driveway. He also said that Soares spoke to him at the time about difficulties with trucks parking.

Evidence of Julio Lima

[36] Julio Lima (“Lima”) is one of the partners of the numbered company owned by Talho2. He owns and runs the butcher shop. He says 80% of his customers are Portuguese and 50% live in the area. When he opened his business in 1975, the meat would be delivered from the back door, says Lima. He confirms that it only took about 10-15 minutes to unload a truck at the back, as there is a line with 3 hooks to haul the goods up. He says the van parks on the north side wall and there is room to go by. Lima says that Soares attended at his Bloor St. location, at one time, and tried to get a petition to turn the right-of-way over to the city.

[37] Lima claims his business has been badly affected by Soares’ complaints and shouting at customers. He says there are companies that refuse to sell to him anymore because they cannot deliver at the back and because they get tickets if they park on Dundas Street at the front entrance. He confirms Silva’s evidence that the white van owned by Talho can park near their back door without blocking Soares from leaving or entering her garage. He also says that Soares verbally abuses his employees and drivers. Many of the photos entered as exhibits were put to him to confirm Silva’s evidence and he agreed with Silva’s evidence. He says he took the photos # 1-11 submitted by the Talho Defendants as evidence.

[38] Lima says that he used to have a customer base of 3,000 persons and it is now down to 2,200. He also says he used to gross over $100,000 sales per week and it is now down to $70,000. He says that it takes longer for deliveries to be made by the front door than from the back door, as the walk is longer and there are no lifting devices like there are at the back.

[39] On cross-examination, Lima admitted that his store has never gone bankrupt in all the years of the confrontation with Soares. He says, however, he does not go out into the driveway when Soares’ garage door is open because she complains about everything. He agrees that he can move the angle of the camera and lights, saying that he just wants to “live in peace.” He agrees that if the city owned the right-of-way, it would have the right to tow parked vehicles away. He agrees that some neighbours signed the petition that Soares tried to circulate, but his view is that they did not understand the consequences of it. He also says that Soares’ son used to sometimes park his car across the back of her property.

Evidence of Oriana Carvalho

[40] Oriana Carvalho (“Carvalho”) is the tenant who occupied the Soares’ home on Coolmine for 5 years. It is her evidence that both she and her husband owned cars. She says she parked in the garage and her husband parked “beside” the garage. Carvalho’s evidence is that she would leave about 6:30 a.m. and return about 4:30 p.m., while her husband left at 6:30 p.m. and returned about 2:00 a.m. She says they rarely had problems with a vehicle obstructing their coming and going. She drove a full-sized car. When it did happen, she says, they would knock on the Talho doors to get the vehicle removed. She says they never had to call the Police to get through to the property. On cross-examination, Carvalho admitted that after they left the rental home, Soares sued them over a short-fall on the rent paid and obtained a Judgment against them.

Evidence of Manuel Limos

[41] Manual Limos (“Limos”) is a neighbour of Soares. He lives at 10 Coolmine Road. He and his parents have lived in the home since 1977. He confirms Soares’ evidence about her backing into her garage. He says he leaves for work every day at about 7:00 a.m. and returns about 6:00 or 7:00 p.m., as well as drives in and out on weekends. He says he experiences difficulties coming or going about once every 3 months. He knocks on the door of Talho to have the obstructing vehicle moved.

[42] Limos says he had a problem with Soares, who, in November 2002, had posts put at the corner of her property which cut him off and the owner of #6 Coolmine from entering their garages. Legal action was taken and the posts had to be removed. He says that Soares then sued them for $3,000, being the cost of putting in and taking out the posts. That case was dismissed, says Limos. He says they left their home in April 2013.

Analysis

[43] Soares’ position is that she still seeks a permanent injunction against all three Defendants from using the right-of-way to park their vehicles. She also still wants to have the camera and lights removed from the Talho2 buildings. She wants Talho to have an obligation to ensure that their customers do not harass or in any way interfere with Soares’ rights, and to take affirmative steps to prevent this. Soares’ counsel confirms that she is still asking for the relief as set out in the letter of Mr. Dov Tal sent January 11, 2005 to Talho and Talho2.

[44] The language set out in all of the Deeds of the owners of property having a right-of-way over the property in question, is all the same with the exception of Soares, who 2 rights of way over the north and south area. The Deeds say nothing about whether guests, visitors, and tradespersons and commercial vehicles have a right of passage over the right-of-way to park in owners’ garages or on owner’s properties or make deliveries and pick-ups.

[45] Soares also claims to be the dominant tenant so that she can enter and leave her garage at the end of the right-of-way. She agrees that the right-of-way in 2013 is now cleaner and less cluttered than it was in 2005 when her Statement of Claim was issued. The earlier photos in evidence compared to the later photos show this. The new BFI bins are kept cleaner than the earlier bins. The bins no longer can roll out into the middle of the right-of-way. The health authorities are now making sure that right-of-way (and presumably the meat-cutting area) used by Talho complies with the regulations.

[46] The issue of the parking of vehicles remains the main source of the problem between Soares and Talho and Talho2. One problem, on the evidence before me, is that the busy times of the day for the Talho business deliveries and pick-ups is after other owners such as Limos leave for work or return home. Soares is now retired and so she experiences the difficulties with the white van owned by Talho and the larger trucks that may bring supplies in. The Talho witnesses seemed to say that the Holly Park truck and ones like it make their deliveries at the front entrance on Dundas Street. This came about because of the lawsuit. Some positive steps have therefore been taken in the interim since the Claim was issued.

[47] The Talho and Talho2 owners and businesses have been occupying the three Dundas Street properties before Soares moved in. They have also expanded since she moved in but there is no evidence that those buildings were ever occupied by anyone or anything other than businesses, which used the right-of-way. There is also no evidence presented by either party as to who, if anyone, lost ownership rights over the actual ownership of the right-of-way.

[48] When I questioned the parties about snow removal and how that is dealt with, it seems that each abutting owner takes care of the snow in front at the back of his or her or its own property. Each of the litigants complained, that the other shovels snow in front of the other’s property. A solution would be for all persons using the property to reach an agreement that a snow removal company come in and clear the area under a contract where each owner would contribute equally in accordance with the width of their properties. I, however, cannot make an Order to that effect. Co-operation is needed, and it had been in short supply in 2005 when the Claim was issued.

[49] In all Deeds examined for Soares’ property and the three Dundas properties, the same words are used at the beginning of the right-of-way description, namely: “TOGETHER WITH a right-of-way at all times for all persons entitled thereto….” The word “persons” includes corporations. The 1324 property, purchased in 1989, is owned 50% by #883227 Ontario Inc., 29% owned by #837229 Ontario Inc., and 21% owned by #837228 Ontario Inc. Julio Lima bought his property at 1326 Dundas Street West on October 24, 1973, and #873227 Ontario Inc. bought 1328 Dundas Street West on June 14, 2002. The corporate entities and Lima therefore have use of the right-of-way, as do their tenants Talho and Talho2 (if it maintains premises in one of the buildings). I am told that there is a tenant above the butcher shop but other than Soares saying that this tenant ejects things into the right-of-way, there is no evidence that it has use of the right-of-way. The owners of 1330 and 1332 Dundas Street West also have access over a smaller part of the right-of-way than other owners that abut it.

[50] Soares has presented the preponderance of evidence that she has had problems leaving her garage and entering from the laneway part of the right-of-way. The other witnesses, who had at some time been blocked, had been less vocal about the blockage and simply asked the offending owners of vehicles to move them. I accept Soares’ evidence that the white van owned by Talho often parked in the right-of-way and annoyed her, or left it there longer than 15 minutes. As the early pictures show, after the Claim was issued, there continued to be problems, which were eventually dealt with by Talho as time passed.

[51] I was presented with considerable case law on rights-of-ways, some of which involved cottage properties and water access. In MacRae v. Levy, para. 69, a 2005 decision of Mr. Justice R. Smith, Cornwall Court File No.: 14540/02, he said:

The right to part a vehicle is not included in a grant of right-of-way. (See Gale on Easements, 17th ed. (London: Sweet & Maxwell, 2002)). The grant of a right to “pass and repass” does not per se include a right to park.

In the case before me, visitors and guests have a right to pass over the right-of-way, and if they can park totally on their host’s land, this is not parking on the right-of-way. On the other hand, for a delivery truck to park for more than 15 minutes, in my view, would constitute parking.

[52] In the properties in question that abut the right-of-way, the Deeds, themselves use the broader word, “persons” rather than owners. In Fallowfield v. Bourgault, a 2003 decision of the Ontario Court of Appeal, docket C39081, Madam Justice Feldman, writing for the majority of the Court, in para. 11 says that when interpreting the meaning and intent of an express easement, the concept of ancillary rights arises and this includes such ancillary rights as are reasonably necessary to use of enjoyment of the easement not just convenient or even reasonable.

[53] The recent decision of Madam Justice Polowin, Moore v. The Republic of Greece, 2012 ONSC 5826, is helpful in examining the general principles the Court has set out when dealing with rights-of-way. In her decision, the issue of use of the right-of-way involved the plaintiff wanting to remove a fence, which demarked part of a right-of-way and replace it with gates on the east and west sides of it. In the end, this was not allowed. She, also, examines the cases which expand the use from one of being convenient or reasonable, to one of enjoyment. In para. 27, she cites Laurie v. Winch, [1953] S.C.R. 49, para. 26, where the grant was one of a right-of-way simpliciter with no express restriction as to use, which is the case before me. The circumstances may also be looked at for the purpose of construing the conveyance as to the nature and extend of the rights conveyed. As was noted in Donohue v. Robins, 20112 ONSC 2851 in para. 11, “However, none of the title documents establish criteria or give parameters pertaining to the right of way and its use, or obligations with respect to upkeep and maintenance.”, which is the same problem Soares is faced with.

[54] In interpreting the grant of an easement and right-of-way, Anne Warner La Forest, in Anger & Honsberger Law of Real Property 3rd ed., looseleaf (Toronto: Thomson Reuters Canada, 2012) at 17:20.30(a), at pp. 17-17 to 17-18, says the following rules apply:

The grant must be construed in the light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect to the intention of the parties.
If the language of a grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.
The past behaviour of the parties in connection with the use of the right-of-way may be regarded as a practical construction of the use of the way.
In case of doubt, construction should be in favour of the grantee.

[55] In the case at bar, the surrounding circumstances show that the right-of-way services both single-family homes on Coolmine as well as commercial properties on Dundas Street West. The language is the same in all the deeds in question. The past behaviour of the parties shows that since the owners of the three Dundas properties bought their lands, there has been a commercial use of the properties. It is also clear, however, that Soares has to have a direct access to the laneway of the right-of -way in order to back her car into the garage. It is also clear that since she has retired, she is the person who is most bothered by the commercial traffic that has grown, in my view, as their business has grown. Since all users are grantees, this principle does not apply.

[56] The case most clearly on point is Anthony v. F.W. Woolworth Co., [1962] 1005, 1962 212 (ON SC), 35 D.L.R. (2d) 82 (H.C.J.), where the plaintiffs were asking for an injunction and damages by the fervent owners against the owner of the dominant tenement for unreasonable obstruction of a common right-of-way. In that case, all litigants were commercial users of their properties in the business centre of the city Peterborough, Ontario. There the issue, described by Mr. Justice Grant on p. 2 of his decision, was the use being made that the defendant permitted the lane to be stopped up or blocked for unreasonable periods of time by motor vehicle, trucks and transports loading and unloading its merchandise to its said premises. There, one of the agreements in question went back to 1888 and it spoke to its use by carriages, horses and cattle, which by the passage of time came to its modern use.

[57] Mr. Justice Grant held on p. 4 that while Woolworth’s had the right to have trucks come over the right-of-way and load and unload them, it “cannot allow their trucks to so use the lane that others entitled to passage over the lane are deprived of such right.” He found that it had allowed such use for an unreasonable length of time and such blocking of the way has amounted to a “real, substantial interference with the rights of the plaintiffs and their tenants to use the same. On p. 5, Mr. Justice Grant said:

The plaintiffs are also entitled to an injunction perpetually restraining the defendant, its servants and agents from placing, parking, leaving or permitting any vehicle or stationary obstruction to be placed, parked or left on the said laneway except at such times as the proper use thereof is not required by any of the plaintiffs, their tenants or under-tenants for passage through the said lane.

[58] I adopt the reasoning as used by Mr. Justice Grant in that decision. In that case, there was only a laneway in question. In the case before me, there is an area where vehicles owned by Talho park their white van at times, which I find on the evidence before me has been unreasonable. I find that the Holly Park truck, which used to deliver meat at the back doors of the Dundas buildings, did block the reasonable ingress and egress of Soares. I am aware, however, that this use has stopped, for the moment. I find that the lights on the Talho rented premises have also created issues for Soares that can be rectified by simple re-positioning.

The Claims for Damages and the Counterclaim of the Defendants

[59] I dismiss both the Plaintiff’s and Defendants’ claims for general punitive and exemplary damages. They are not applicable in this case. The Plaintiff’s claim for tire damage could not plausibly have affected all 4 tires which she had replaced. The Defendants’ claims about the cost of the Holly Park parking tickets, is also not realistic. I have found that it did improperly block Soares’ coming and going.

[60] The Defendants’ Counterclaim is based only on general hearsay evidence about loss of customers and income. No forensic accounting reports were presented in evidence. No Financial Statements were produced. Even if they had been, I cannot see how Soares could be blamed for trying to stop improper use of the right-of-way. The Counterclaim is therefore dismissed.

Conclusion

[61] The following Injunction and Orders shall issue:

Soares is entitled to an injunction perpetually restraining the Defendants, their servants and agents from placing, parking, leaving or permitting any vehicle or stationary obstruction to be placed, parked or left in the right-of-way except at such times as the proper use thereof is not required by Soares and other persons who have access in their deeds over the right-of-way and have rights of ingress and egress thereof. No large delivery trucks over the size of the white van may use the right-of-way. The white van and other delivery vehicles may park in an area not obstructing access for 15 minutes and they shall move if any of the other users requires entrance or exit.
Talho shall be allowed to wash its refuse bins and its vehicles in the space where the drain is accessible but again, for no longer than 15 minutes.
The Defendants who control and/or own the camera and lights affixed to the Dundas building, shall re-direct both so that the camera is not aimed at Soares’ garage and back door, and so that the lights are aimed away from her house and down on the right-of-way.
If Talho needs to have the white van park, in extenuating circumstances, longer than 15 minutes and not more than 45 minutes, the owner shall phone Soares and inform her of the need, so that she is aware of that need. It shall not happen on a regular basis but on an emergency or in extenuating circumstances.
The Defendants shall continue to keep the right-of-way free of debris, clutter and garbage. They shall continue to keep the fly traps in order and not allow any spills, which may accidentally occur, to remain in the right-of-way. They shall immediately wash them away.
The Plaintiff and the Defendants shall co-operate in the removal of snow blocking their premises so as not to throw it against each other’s buildings or on land not owned by them.
Talho and Talho2, or the corporate owners of the Dundas buildings, shall attempt to obtain from the City of Toronto, a permit to allow its large delivery trucks to stop and load or unload its goods in a designated parking space in the front of these buildings.

Costs

[62] If the parties cannot otherwise agree on Costs, they shall send me written submissions no later than 30 days after the date of this Injunction and Orders, together with Bills of Costs, time dockets and case law. These shall be sent or delivered to me care of Judges’ Administration at 361 University Avenue, first floor, Toronto.

Greer J.

Released: December 23, 2013