Court File and Parties
Citation: Heng et al. v. Rodriguez et al., 2015 ONSC 1677 Court File No.: CV-14-496993 Date: 2015-03-30 Superior Court of Justice - Ontario
Re: Gek Choo Heng and Aik Kim Heng, Applicants And: Ramos Rodriguez and Amador Rodriguez, Respondents
Before: Sean F. Dunphy Counsel: Hashim Syed, for the Plaintiffs Brian Diamond, for the Defendants
Heard: March 13, 2015
Endorsement
[1] This application is brought under Rule 14.05(3)(c) for a declaration regarding the boundaries of land and for ancillary injunctive and other relief. The dispute pits two neighbours against each other. The applicants are the owners of 17 Holwood Avenue in Toronto while the respondents are the owners of the neighboring property at 15 Holwood Avenue. I have carefully reviewed all of the materials filed by the parties.
[2] There are in reality three distinct disputes embedded within this application only one of which (the first) is arguably the proper object of a Notice of Application: (i) trespass; (ii) negligent misrepresentation; and (iii) nuisance.
Trespass
[3] The first dispute has to do with the precise location of the boundary between the parties in relation to a fence, retaining wall and concrete pad underneath a shed constructed on the southern third of the respondents’ property at 15 Holwood in 2007. This dispute I characterize as the “trespass” complaint and is at least on its face properly the subject-matter of an application under Rule 14.05(3)(c) and injunctions in relation to same would properly fall within Rule 14.05(3)(g).
[4] It is common ground that, at least as regards the metes and bounds set forth in the pin created under the Land Titles Act, R.S.O. 1990, c. L-5 to record title to 15 Holwood and 17 Holwood when the properties were converted to the Land Titles system on September 24, 2001, the improvements made to 15 Holwood in 2007 infringe slightly upon the lands of the Applicants at 17 Holwood. This fact was confirmed for the first time when a survey was performed in 2012 at the behest of the applicants. The survey showed that the improvements made by the respondents at the southern end of their property crossed the western boundary line of their lot and extended slightly into the applicants’ property at 17 Holwood by something less than a foot (18-24 cm).
[5] The respondents defend against this application and assert the right to maintain their improvements in site by virtue of a crystallized claim to adverse possession prior to the creation of the Land Titles pin in respect of the lands on September 24, 2001.
[6] The respondents purchased the property at 15 Holwood in 2002 (i.e. after the conversion of the property to the Land Titles system in 2001). At the time of purchase, there was an old wooden fence in place which had been in place for many years separating 15 Holwood from 17 Holwood to the west. There can of course be no question of adverse possession occurring after the date of creation of the pin and entry of the lands into the Land Titles system (s. 51 Land Titles Act), but any claims to adverse possession existing as of the time of conversion were not affected.
[7] Between 2002 and 2004, the respondents built an elevated deck at the back of their house on the northerly portion of their backyard. The deck is bordered by a wooden fence. There is no dispute as regards the location of the deck and wooden fence in relation to the lot line. The 2012 survey commissioned by the applicants reveals that this construction was entirely on the respondents’ property. The only complaint about this construction appears to be the nuisance suit and the affect these improvements are alleged to have had on the run-off of water from 15 Holwood to 17 Holwood (as to which see below).
[8] In 2007, the respondents began construction of a shed on the southerly portion of their lot replacing an older shed formerly situate there. The lot is oriented north-south, with the front of the house facing to the north and the backyard being on the southern half or so of the lot. As ultimately constructed, the shed was built upon a combined concrete pad and retaining wall construction, with the westerly portion of the construction being bounded by a new wooden fence built in the same style as the one constructed in 2002-2004. While this construction project was on-going on the respondents’ lands at 15 Holwood in 2007, the applicants themselves contracted to have a new chain link fence built. Their construction agreement (dated August, 2007) also called for the contractors to remove and clean up the old wooden fence that formerly stood (apparently) between the properties. Photographs exist of the construction taken from later in 2007 which show the concrete pad completed, the old wooden fence removed and the new chain link fence in place (but prior to the completion by the respondent of the shed, retaining wall and new wooden fence).
[9] The chain link fence was deliberately installed somewhat to the west of the line of the old wooden fence it replaced. The 2012 survey confirms that it was very clearly built entirely within the lands of the applicants. All or substantially all traces of the old wooden fence – or at least the relevant portions in the southern half of the lot- were removed in the process.
[10] It is relevant at this point to note a bit about the topography of the southerly portion of these two properties (15 and 17 Holwood). The properties are built on a bit of a hill such that the land in that area slopes both east to west and south to north. There is a rather steep retaining wall separating both properties (15 and 17 Holwood) from their higher neighbours to the south.
[11] If the boundaries of the lands as specified in the Land Titles system at the time of their conversion and entry into the system in 2001 are the only guide, the respondents shed/retaining wall/fence structure at the southern end of their property is indeed trespassing to the tune of 18-24 cm and, if that finding stands, the respondents will have no choice but to remove the wooden fence and grind back the concrete retaining wall by several inches in order to confine their improvements and fixtures to their own lot. The respondents candidly agreed with this assessment but seek to assert title to the lands upon which the 2007 improvements were built (the narrow 18-24 cm strip encroaching upon the applicants’ lands) by reason of a crystallized claim to adverse possession preserved by s. 51 of the Land Titles Act.
[12] While fault is not a factor in determining lot lines and trespass, I might note that the improvements undertaken by the respondents in 2002-2004 (while the old wooden fence still stood) were properly aligned within the respondents’ lands while while those completed in 2007, completed as they were after the applicants caused the old fence to be removed and replaced with a new fence several inches further west, appear to have been encroached slightly over the lot line. There is a reasonable inference that might be drawn that this minor encroachment would not have occurred had the boundary fence not been removed prior to completion, causing contractors to be potentially mistaken as to the location of the boundary line if indeed the construction project crossed the old fence line. There is no suggestion that the encroachment was deliberate.
[13] The respondents’ position, however, is that their 2007 constructions were in fact undertaken entirely within the lot line as described by the old wooden fence (now removed) which they claim represents the true boundary line of the two properties. They have presented evidence suggesting that the fence line was always treated as the boundary line by their predecessor in title for more than ten years prior to the entry of the lands into the Land Titles System. Thus, they claim, their predecessor in title conveyed to them a crystallized, pre-Land Titles claim to adverse possession which has been preserved by s. 51 of the Land Titles Act.
[14] In assessing the respondents’ defence of adverse possession, the first task is to assess whether the old wooden fence that was removed in 2007 can be situated with precision today. If it can – and if the 2007 improvements of the respondents lay to the east of that fence line – then they may be able to resist a claim of trespass if they can establish the elements of adverse possession necessary as at 2001. Upon a careful review of the evidence, I am satisfied that the fence line can be located with sufficient accuracy and that the 2007 improvements by the respondents lay entirely to the east of that line.
[15] The parties produced several photographs taken in 2007 showing the new chain link fence at 17 Holwood fully constructed in replacement of the old board fence while the concrete pad under the shed alone had been completed at 15 Holwood. While the old board fence had by then been removed (at least on that portion of the lot), the photographs preserve a clear view of the last post of the old wooden fence which was still clearly in view anchored to the retaining wall of the property to the south. All parties agreed that this single board in the photographs was the last remaining piece of the (by then removed) old board fence. The photographs clearly show that wooden board – and thus the southern extremity of the old wooden fence – as being several inches to the east of the new chain link fence built, several inches to the west of the edge of the concrete pad underpinning the garden shed then under construction and directly beneath the last post of the wooden fence of the neighboring property to the south.
[16] This latter point is important because the fence of the southern neighbor is still in place and remained in place when the respondents completed construction of their shed-retaining wall-wooden fence project in 2007. Pictures of the property as it exists today show that the 2007 construction of the shed/retaining wall/fence on the southern extremity of the lands of the respondent clearly lies to the east of the edge of the last post of the wooden fence of the southern neighbor. One such photograph shows the edge of the new construction to be at least a full 2 x 4 board to the east of the line of fence of the southern neighbor. Other pictures from different angles confirm this.
[17] This evidence satisfies me that I may conclude with confidence that the wooden fence and retaining wall constructed by the respondents in 2007 lie entirely to the east of the line of the old fence that stood between the properties when the respondents purchased their land in 2002.
[18] The corollary of this of course is that the old wooden fence lay some number of inches west of the property line described by the metes and bounds of the lot when it was entered into the Land Titles system in 2001 since the respondents constructions currently encroach by 18-24 cm to the west upon the lot line described by the Land Titles pin as found by the undisputed 2012 survey. If the respondents can establish that the old wooden fence was in fact treated as the boundary between 15 and 17 Holwood for at least the ten years prior to the entry of both lots into the Land Titles system in 2001 (as well as the other elements of adverse possession), then the applicants claim for an order declaring trespass must fail.
[19] It must be noted here that the respondents do not have a motion pending to declare that they have title by adverse possession or to rectify the pin currently in the Land Titles system. In the present application, the adverse possession claim is being advanced as a defence to the trespass claim brought in the application. If I find the defence successfully made out, that aspect of the application will be dismissed and the respondents will be left to seek to rectify their title at another time.
[20] Based upon all of the evidence before me, I conclude that the claim of trespass must fail and that the defence of adverse possession has been made out. At all material times, the owners and occupiers of 15 Holwood believed the strip of land east of the old fence to be theirs and acted at all times consistent with such belief with the full intent to exclude, if necessary, the use or occupation of such strip of land by any other person. The land was at all times used as if it were an integral part of the back year of the 15 Holwood and maintained and used in the same fashion as the rest of the yard without distinction. 17 Holwood took no actions for at least ten years prior to September 24, 2001 to assert a contrary position.
Evidence of the respondents
[21] The respondents purchased the property in 2002 (after the entry of the land into the Land Titles system) and thus their own testimony can add nothing by way of evidence to establish a crystallized adverse possession claim as of 2001. The evidence regarding adverse possession of this small strip of land comes from three sources: the applicants themselves, the former owner of the property at 15 Holwood (Mr. Aviles) from 1988-2002 and Mr. Alfaro, a former tenant of Mr. Aviles who occupied a portion of the house at 15 Holwood in the period 1991-1994.
Evidence of the Applicants
[22] The applicants purchased 17 Holwood in 1995 and were witnesses to the state of the land in that year and until 2001. The evidence on behalf of the applicants was supplied by their daughter, Ms. Yee Ping Heng whose proficiency in English made her the main family interlocutor with neighbours and others. While Ms. Heng states that her family “always” considered the old wooden fence to have been owned by her family, she never indicated any belief that the fence was other than a boundary fence. Her evidence was entirely consistent with the view that the lands beyond the fence belonged to her neighbours. Indeed, the whole tenor of her cross-examination and affidavit evidence appears to spring from the that the old fence was in fact the boundary between the two properties. Given my findings regarding ownership of the lands east of the old fence line, I find no need to make a finding regarding ownership of the land underneath the old fence itself and decline to do so.
[23] Ms. Heng’s testimony regarding events after the purchase of 15 Holwood by the respondents is of course not strictly relevant to the status of a crystallized claim, if any, to adverse possession at the time of the creation of the pin regarding the properties on September 24, 2001. However, her course of action in dealing with her neighbours and the lands immediately east of the old wooden fence after 2002 may shed light upon what her family believed or understood to be the case prior to that time. In my view, her actions after 2002 were not consistent with her statement that the family had always considered the fence (still less the lands immediately to the east of it) to be theirs.
[24] Firstly, she claims to have been told on multiple occasions that the constructions undertaken by the respondents were not encroaching on the property of 17 Holwood. As regards the first round of improvements (the deck and fencing in the north half of the backyard), these were constructed while the old wooden fence was still in place and obviously fully respected the lot line described by it. I find that the only conversations she had with her neighbour on the subject of the lot line, surveys or encroachment was after she removed the old wooden fence and the 2007 improvements were completed in the south end of her neighbour’s back yard. Even then, she did not challenge the respondents’ protestations that they were fully within their own property line. There is no suggestion from her evidence that she was in any way surprised by the assertion of title made by her neighbours. She appears to have assumed these statements to be true because they corresponded with her expectations from prior years since she knew the improvements to have been entirely inside the line described by the old wooden fence which she had since arranged to remove.
[25] Secondly, when she arranged to have the southern portion of the old wooden fence removed and replaced with a chain link fence in 2007, she deliberately chose to situate the new chain link fence well to the west of the line of the old wooden fence. She knew that her neighbours had already built a fence of their own beside their earlier round of improvments (which was west of the old fence line but clearly only inches away from it) and presumably would be doing the same upon completion of their new shed project down to the southern edge of the lot. Just as her neighbours had built their own new fence on their side of the old wooden fence, so too did she cause 17 Holwood to build the new chain link fence on her own (western) side of the same old fence. Thus both sides treated the fence line as the true border between them when they built their respective new fences – it was only when both had built (or were building) new fences that the old wooden border fence became superfluous and was removed from the no-man’s land between the two fences.
[26] The comment offered by Ms. Heng that the chain link fence was placed where it was (i.e. back of the line of the old fence) to avoid any problems with city set-back requirements does not appear credible to me and would appear to be an ex post facto reconstruction. If the fence was, as she claims, the property of the Hengs, why would she assume that replacing it might cause set-back issues? If it was their fence and theirs alone, why not simply build exactly where the old fence was? The more credible explanation is that Ms. Heng copied the example of her neighbours and built her own new fence just inside the line of the old fence which both considered to be the “true” lot line. Each side having built their own new fence, Ms. Heng proceeded to have her contractor remove the superfluous old fence between the two.
[27] Mr. Rodriguez’ actions as a newcomer to the situation are not particularly relevant to the existence of a crystallized claim in 2001, but the actions of the Hengs in 2007 can and do cast some light on their understanding and actions between 1995 and 2001. I find that the Hengs’ evidence is consistent only with their having understood and accepted the old wooden fence as the true boundary between the two properties. As noted, I make no findings regarding ownership of the land underneath the old fence itself.
Evidence of Mr. Alfaro
[28] The respondents presented a signed statement of Mr. Alfaro and ultimately made him available for cross-examination. Mr. Alfaro was a tenant of the previous owner of 15 Holwood between the years of approximately 1991-1994. He recalls the old wooden fence, he recalls that the distance between the former shed at the back of 15 Holwood and the wooden fence was a few feet – sufficient to enable him to walk around the shed completely. He played in the backyard both with his own child and with the child of his landlord (Mr. Aviles). When balls were occasionally lost in the neighbour’s yard, he or one of the children would “hop the fence” to retrieve them. The back portion of 15 Holwood was muddy for much of the spring but would dry out later. By contrast, the southern portion of 17 Holwood had visible puddles of water and was overgrown. Both 15 and 17 Holwood had drainage issues however as they are lower than their neighbours to the south. He was able to examine the new constructions on the back of the property at 15 Holwood after the litigation began and was confident that they were well within the old fence line as he was able to ascertain at least some of the vestiges of the old fence line which he was still able to see (described by him as wooden “picks”). While not specifically asked on the point, the premise of his evidence was clearly that he understood the fence to be the property boundary on the west side of the lot at 15 Holwood. His evidence is consistent with using the whole of the back yard in a normal fashion and without singling out the narrow strip of land beside the fence for any different usage.
Evidence of Mr. Aviles
[29] Mr. Aviles provided an affidavit upon which he was cross-examined. He lived at 15 Holwood from 1988 or 1989 until its sale to the respondents in 2002. He could not recall the year of his purchase – 1988 or 1989 – but I find the issue immaterial. His period of use and observation covers more than ten years prior to September 24, 2001 regardless. He continues to live nearby (at 23 Holwood). His unshaken testimony was to the effect that (i) the fence was always treated by him as the boundary; (ii) the fence was there prior to his purchase of the house in 1988 or 1989 and was never moved; and (iii) no complaints were received at any time from the occupants of 17 Holwood regarding the placement of the boundary fence. He also had comments regarding the state of flooding in the back third of the properties which will be material to the nuisance claim discussed below.
Analysis of Adverse Possession Claim
[30] The elements of a claim of adverse possession are not in any serious contention in this case. The claimant must establish (i) actual open and notorious possession, (ii) possession which is adverse to the claim of the owner; and (ii) possession which is continuous and uninterrupted by a resumption of possession by the owner in that capacity. It is said that the claimant must establish possession which is “open, notorious, peaceful, adverse, exclusive and continuous”. It is a question of fact in each case to establish whether such possession has been made out, but the courts will have regard to the nature of the property and the natural use to which it might be expected to be put. It is not necessary to build improvements but adversity requires possession to be without the permission of the owner. A useful summary of these principles can be found in the decision of Perell J. in Mueller v Lee, 2007 23914 (Ont. S.C.J.) at paragraphs 14-17.
[31] Frank J. in the caser of Reiner v. Truxa 2013 ONSC 6009, [2013] O.J. 4351 (S.C.J) also notes (at para. 19-21) that in cases of adverse possession where possession is by dint of mistake, the evidentiary threshold of establishing adversity of possession may be lower. The law will be generous and make allowances in favour of an occupier by mistake but will be less so in the case of a deliberate, intentional trespasser. Where possession is due to a mistake regarding the location of the “true” lot line, the requirements for possessory title can be met where the claimant has continually used the land and the true owner has been out of possession of the land for the requisite time (Reiner, para. 21). That is unquestionably the case here.
[32] There are of course a number of cases involving fence lines in particular. The case of Murdoch v Kenehan and Royal Bank of Canada, 2003 2861 (Ont. S.C.J.) is such a case. Heeney J. noted in that case that while there is “no magic in the lack of a fence, the presence of a fence is still regarded as strong evidence of an intent to exclude” (at para. 43). There, as here, the evidence established that the fence was used as the actual boundary by the parties with both sides using their respective areas on either side of the fence “as a yard to service a single family residence” with “both owners maintain[ing] the property on their side of the fence consistent with that intended use”.
[33] There is no question here but that the possession of the strip of land inside the old fence line has always been based on the assumption – certainly unilateral (on the part of Mr. Aviles and Mr. Alfaro) but likely bilateral (including the Heng’s) – that the fence described the actual boundary between the properties. There is also no question that the tiny strip of land in question has been used by the owners of 15 Holwood in exactly the same way as the remainder of their back yard without distinction of an imaginary lot line that nobody was aware of. It is clear as well that the owners of 17 Holwood were out of possession of that strip of land beyond the fence for the entire time period under review and never asserted nor had accepted any claim to the strip of land.
[34] In argument, the applicants suggested that the acts of dominion of the owners of 15 Holwood in relation to the strip of land were slight. The counter to that position is that the acts of dominion of the alleged “true” owners at 17 Holwood were non-existent. As well, the acts of dominion necessary to establish possession are to be considered in light of the nature of the land and its natural and ordinary use. The land in question is at the south end of the property and is, in effect, the bottom of the backyard. At all times under consideration, the back portion of 15 Holwood had a shed constructed on its southern extremity. The land was often soggy. The evidence was that the backyard of 15 was kept manicured whereas the backyard at 17 Holwood was often swampy and had tall, unkempt growth of grass. I infer from this evidence that the whole of the backyard was kept reasonably manicured and that, given the assumption of all occupiers that the fence was a boundary fence, nobody took the extraordinary step of leaving a strip of grass beside the fence un-mowed in deference to an unknown surveyor’s lot line. The lands between the shed and the fence left a strip wide enough to walk along and Mr. Alfaro at least appears to have done so when the occasion demanded it. There is no suggestion that anyone from 17 Holwood did as much.
[35] I find that a claim of adverse possession has been made out to the strip of land lying to the east of the old fence line in favour of the respondents as successors in title of 15 Holwood. The respondents’ defence of the trespass claim must accordingly succeed and such portion of the application is accordingly dismissed.
[36] I understand that there are minor issues between the parties regarding various pieces of drainage piping or wires running beside the 2007 improvements. I haven’t sufficient evidence before me regarding the locations of these items extruding as they do from the 2007 improvements to make any finding regarding their location in relation to the old fence line and thus make no finding in relation to them. The responsible thing to do among neighbours might be to work that minor issue out between them without resorting to further litigation and it is to be hoped that their counsel might be in a position to help their clients work out a reasonable solution at lower cost than might be entailed by further litigation in relation to such a minor matter.
[37] I do not have sufficient evidence before me to establish ownership of the land lying underneath the former fence by either party. The evidence before me satisfies me that both the owners/occupiers of 15 Holwood and 17 Holwood treated the fence as the boundary line between their respective properties. Whether the fence was presumed to be “owned” by one or the other of them I cannot say. There is no evidence of parties painting or staining it, repairing it, etc. Since the wood fence does not appear on the 1972 survey, it stands to reason that it was built some time after 1972 and before 1988 or 1989 when Mr. Aviles purchases 15 Holwood with the fence already in place and in sufficiently good shape that the matter of its maintenance did not appear to arise during the time of his tenure. My reasons are not to be taken as ruling in favour of either party on the matter of ownership of the narrow strip of land on which the fence once stood.
Negligent Misrepresentation
[38] The second dispute concerns allegations of negligence arising from representations allegedly made between neighbours in a threatening manner, misleading manner, negligent manner, etc. Very substantial, but entirely unsubstantiated, damages are claimed in the Notice of Application to arise from this behaviour.
[39] Nothing in particular appears to turn on these vague “atmospheric” allegations despite the round numbers of damages said to attach to them. Such atmospheric claims have no place in a Notice of Application. While I find it regrettable to see diversions of this sort inserted in the pleadings with so little care and attention to what would be required to make a serious and sustainable pleading, it is at all events clear that such matters go beyond “other consequential relief” that can be squeezed into a Notice of Application under Rule 14.05(3(g).
[40] The Notice of Application contains no proper pleading of the foundations of a negligent misrepresentation suit. Such a pleading would have to establish a special relationship. Merely reciting that neighbours shouldn’t mislead each other does not establish sufficient proximity to bring this tort into play. There is no allegation of any actions taken in reliance on the allegedly false or misleading statements other than minor delay in bringing these proceedings. There is no pleading of damages resulting. The negligent misrepresentation allegation is, in my view, inserted as a “throw away” claim in the pleading and I propose to do just that to it here.
[41] Since the application is before me for a hearing on the merits, I find the misrepresentation claims advanced in the Notice of Application to be entirely unproved and they are thus dismissed.
Nuisance
[42] The third complaint buried within the Notice of Application is a nuisance suit alleging that the manner of construction of a raised deck and retaining wall by the respondents has caused additional run-off to the applicants’ land resulting in flooding and other elements of damage. The nuisance suit claim is well beyond the scope of “other consequential relief” that can be claimed in a Notice of Application and is in my view the proper subject-matter of an action.
[43] It is quite clear to me on the evidence that the water run-off issue (i.e. the nuisance claim) is the source of all of the problems between these two neighbours. No survey would have been commissioned and no complaint of trespass would have been made but for the feeling of the applicants that their concerns were being ignored and the water run-off problem was being made worse by the improvements the respondents made to their property. The applicants had not noticed the minor encroachment of the 2007 improvements on the surveyor’s lot lines until the problem caused by the run-off caused them to make further inquiries.
[44] The nuisance complaint cannot be disposed of summarily based upon the evidence before me. There is disputed evidence as to causation. Mr. Aviles has provided an affidavit attesting to the fact the nature and type of flooding that occurred while he was owner (and prior to the construction of the raised deck and retaining wall complained of). The respondents claim – rightly or wrongly I cannot now say – that they have actually improved the drainage situation through some of their improvements. The owners of 17 Holwood have made alterations to their own land (esp. paving stones) which may have impacted on the drainage of it. The disputes regarding causation may require expert evidence (and will certainly involve conflicting fact witnesses). As well, damages are by no means liquidated or readily ascertained.
[45] I have no hesitation in ordering the “nuisance” complaint to be heard by way of trial in the context of an action and not an application. The record before me is not adequate to dispose of it fairly.
Disposition
[46] I am accordingly dismissing the Application with the exception of the claims of nuisance contained therein. The remainder of the application must therefore be converted to an action, with a speedy trial directed but restricted to the surviving claim of nuisance.
[47] While the nuisance claim is not one that I feel can adequately be dealt with as part of the summary hearing of the original Notice of Application, I am quite conscious of the admonitions of the Supreme Court of Canada in Hryniak v Mauldin, [2014] S.C.R. 87. This dispute between neighbours in a modest neighborhood has already consumed a significant amount of their resources and has the potential to morph into a bitter piece of litigation without end and without regard to the relatively modest economic value of the disputes between the parties, however strongly run the emotions. While I cannot create harmony between neighbours with a wave of a judicial magic wand, I can fashion a process to deal with the remaining disputes between them in a cost-effective way proportional to the nature of the remaining dispute between them without burdening them with expenses that will risk one or both losing their homes.
[48] At its core, the nuisance allegations deal with complaints of persistent and continuous flooding of the applicants’ lands with water flowing from the respondents’ lands in the rear (southern) portion. If the parties (or their counsel assisting them) are unable to find a way to invest a fraction of what will be spent on legal fees in litigation to engage instead a contractor or engineer to come up with a simple, cost-effective joint proposal to improve the drainage problems between their two properties, this court will have to hear and determine the suit.
[49] Much of the trial preparation ground has already been covered in getting this application ready for a hearing. I have accordingly fashioned a summary procedure designed to ensure a rapid and cost-effective hearing of the narrow issue remaining between the parties.
[50] The Notice of Application (as amended) and affidavits filed by the parties will serve as the pleadings.
[51] I direct the parties to file expert reports, if any, upon which they intend to rely within 90 days of the date hereof.
[52] The cross examinations conducted by the parties will stand in lieu of discoveries and the exhibits to the affidavits and cross-examinations will constitute the productions of the parties. A summary of evidence of new witness shall be disclosed in will say statements that are to be delivered not later than the last day for delivery of an expert report of such party (i.e. 90 days from now). No documents that have not been produced by the same 90 day deadline under this procedure may be relied upon at trial without leave and I expect that leave will neither be asked for nor required.
[53] Should any party require further discovery in relation to a will say statement so delivered, it shall be as agreed between the parties or as ordered by me. Any such requests must be prepared to speak to the balancing of cost and necessity. I shall remain seized of the matter and may be spoken to regarding further discovery needs if they are truly necessary.
[54] The matter shall be set down for trial for three days maximum on the first available short trial list date the parties are can secure after September 1, 2015.
[55] Failing agreement between counsel regarding the trial date, they are to appear before me for further directions prior to June 30, 2015.
[56] While important to the parties, this matter is of relatively modest economic dimension and we must be collectively conscious not to impose upon the parties procedures that result in costs out of all proportion to the matters at issue. I do not want either the applicants or the respondents to find themselves forced to sell their homes in which they have such evident pride to pay legal fees to defend them. The procedures I have directed above have been formulated with this principle in mind. I expect a maximum of co-operation between counsel to ensure that this ideal is scrupulously adhered to. Cross-examinations, undertakings and refusals by both sides to date have involved numerous regrettable matters that were self-evidently tangential or even purely irrelevant or needlessly adversarial. While I cannot dispel with an order the acrimony that has unfortunately built up between these neighbours, I expect that page has now been turned. Counsel must now rise above the acrimony that separates their respective clients. What is called for is an expeditious and co-operative approach that will enable both sides to have their important issues aired in court to their satisfaction without any greater financial burden than is strictly necessary.
[57] While the respondents have been substantially successful in the hearing to this point, a significant portion of costs incurred to date relate to the nuisance claim which has not yet been determined. I shall reserve on the matter of costs of the application to date. It is my intention to defer a ruling on costs of the hearings to date until the completion of the hearing of the nuisance claim in September or as soon afterwards as the matter can be scheduled. However, I reserve the right to rule on costs sooner should circumstances warrant if the hearing schedule is delayed for any reason.
Sean F. Dunphy, J. Date: March 30, 2015