SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14/46168
DATE: 2014/04/04

RE: ANTHONY SCIARA and RADHA MENON-SCIARA, Applicants

AND:

JOSEPH SZPAKOWSKI, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: B. Remigis, for the Applicants

Respondent - Self-represented

HEARD: April 3, 2014

ENDORSEMENT

Parties and Background

[1] The Applicants are the owners of residential property municipally known as 74 West Avenue South, Hamilton Ontario (the “Sciara Property”). The Respondent is the owner of an adjoining property municipally known as 72 West Avenue South, Hamilton Ontario (the “Szpakowski Property”).

[2] Between the residences of the two properties is a narrow strip of land largely on the Szpakowski Property (the “lane”) which provides the Applicants with their only exterior access to their rear yard. Since they acquired their property in 2009 they have utilized the lane to access their rear yard. The lane is too narrow for vehicular use, however, the Applicants must use it to move their lawnmower from the rear yard to the front yard and back again. The water meter for their home is located in the lane. It is the only exterior path for pedestrian access from the front to the rear of the Sciara Property

[3] The Respondent cannot use the lane to access the rear of his property because of the location of a deck and sunroom at the rear of his property extending to the property line. The Respondent accesses his rear yard by means of a similar lane on the opposite side of his home.

[4] The Applicants say that the lane has been utilized by them and their predecessors in title for over 50 years in order to access their backyard. They assert that such use has been continuous, uninterrupted, open, peaceful and without permission. They claim a prescriptive easement over the lane giving them the right to the continued use of the lane for the purpose of accessing the rear of their property. They have led affidavit evidence from the Applicant Anthony Sciara and from former owners of both properties and others in support of their claim to a prescriptive easement.

[5] Unfortunately the Applicants and the Respondents came into a dispute in 2013 regarding another matter. As an apparent consequence of this dispute, the Respondent has threatened to cut off the Applicants from the use of the lane and in particular has given notice to the Applicants that he intends to construct a fence fully or partially across the lane to physically prevent the Applicants from entering onto the portion of the lane lying on his side of the property line. I am advised that, following service of the Applicant Record, he commenced construction by installing two posts and running a string between them. He advised in submissions that he has purchased the materials to construct the fence and intends to proceed with installation of the fence. He previously attempted to prevent the Applicants from using the lane by placing obstructions in it.

Nature of the Application

[6] The Applicants have brought an Application for a declaration that they have a prescriptive easement over the lane, and an order for an interim and interlocutory and final injunction restraining the Respondent from constructing a fence or any other structure which will effectively prevent the Applicants from using the lane and for special damages.

[7] The Respondent did not serve or file any responding materials. Although the Respondent initially opposed an adjournment of the main application, the parties eventually agreed that it should be adjourned to be heard as a “long motion” to permit the Respondent to file responding materials and when it became clear that argument of the Application would take more time than is available on a regular motions' day.

[8] However, the Applicants seek an interim injunction preventing the Respondent from constructing a fence or any other structure in the lane and an order requiring the Respondent to remove any fence, structure and/or materials which impede or may impede the Applicants access to their backyard until the matter is disposed of following argument as a long motion.

Discussion

[9] Since the Respondent did not file any responding affidavit evidence, the affidavit evidence led by the Applicant is, for the purpose of determining whether an interim injunction should be granted, to be considered undisputed. It is of course not my role in dealing with the request for an interim injunction to make a final determination of the merits of the application, and the Respondent is fully entitled to introduce whatever affidavit evidence he is advised to dispute the claims made by the Applicants. My only role is to determine what should happen with respect to the ability of the Applicants to continue to utilize the lane to access the rear of their property pending the determination of the issues in the Application on their merits.

[10] The test to be applied by the court in considering whether an interim injunction should be granted was laid down by the Supreme Court of Canada in the case of RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, namely (a) is there is a serious question to be determined, (b) will the applicant suffer irreparable harm if the application were refused and (c) does the balance of convenience favour the Applicant, such that the Applicant will suffer greater harm from the refusal to grant an injunction compared to the harm the Respondent will suffer if an injunction is granted?

[11] The threshold for determining whether there is a serious question to be determined is a low one. The judge on the application must make a preliminary assessment of the merits of the case and once satisfied that the application is neither vexatious nor frivolous the motions judge should proceed to consider the second and third prongs of the test. A prolonged examination of the merits is generally neither necessary nor desirable (see RJR at paras. 49-50).

[12] I am satisfied, based upon the affidavit material led by the Applicants that there is a serious question to be determined as to whether they have a valid claim for a prescriptive easement over the lane. I do not need to determine whether the Applicants will succeed on their claim to a prescriptive easement and indeed, even if I were of the opinion that the applicants are unlikely to succeed, I am required to proceed to consider the second and third prongs of the test so long as there is a serious question to be determined in the sense that the claim is not frivolous or vexatious (see RJR at para. 49).

[13] On the second prong of the test "irreparable" refers to the nature of the harm suffered by the applicant rather than its magnitude, and is comprised of harm which either cannot be quantified in monetary terms or which cannot be cured (see RJR at para. 59).

[14] I am satisfied that the inability of the Applicants to have exterior access the rear of their property for the purpose of maintaining it, or for the purpose of accessing their water meter located in the lane constitutes irreparable harm. Moreover the cutting off of exterior ingress and egress to the rear of the Applicants’ property by emergency personnel or by the occupants of their home creates potential risk in the event of fire or some other emergency.

[15] With respect to the third prong of the test the Respondent submitted that he wished to construct a fence across the portion of the lane on his property to prevent the Applicants from coming onto his property and from making rude gestures towards him when so doing.

[16] The Respondent indicated that he has owned the property for some 38 years. At is evident that throughout his ownership he has not had the need to construct a fence across the lane for any purpose, notwithstanding that the Applicants and their predecessors in title have, on the evidence presently before the court, utilized the lane to access the rear of the Sciara Property throughout the time that the Respondent has owned his property. Indeed, since the lane is of no use to the Respondent to access the rear of his property, the only possible purpose of constructing a fence across it would be to prevent the Applicants from using it to access the rear of their property. The Respondent will suffer minimal or no harm by having to hold off constructing the fence until the determination of the claim of the Applicants to a prescriptive easement over the lane by the court. Any such minimal harm or inconvenience would be far outweighed by the harm to the Applicants in having no exterior access to the rear of their property.

Disposition

[17] The Applicants have therefore satisfied the test for an interim injunction as laid down in RJR. It is ordered that the Respondent be restrained from constructing a fence or otherwise obstructing the Applicants from freely utilizing the lane to access the rear of their property.

[18] I have signed the draft order providing for adjournment of the Application to the long motions list for the week of June 16, 2014, and for the granting of an interim injunction against the Respondent until the Application is heard or until further order of the court

[19] If necessary, approval of the draft order of by the Respondent is waived.

[20] The costs are reserved to the judge hearing the Application.

D.A. Broad

Date: April 4, 2014