COURT FILE NUMBERS: 3520-14 and 3988-14

DATE: 2015/07/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARK PRZEWIEDA and TERRI JO DEVELOPMENTS INC.

Applicants (Respondents in Counter-Application)

And:

HAROLD CAUGHLIN, MARGARET CAUGHLIN, ANN MARIE VAN DYK, ROBERT VAN DYK, DAVID SHAW AND BEVERLY DUBRULE

Respondents (Applicants in Counter-Application)

BEFORE: Justice I. F. Leach

COUNSEL:
Analee J.M. Ferreira, for the Applicants
Linda M. Smits, for the Respondents

HEARD: May 22, 2015

ENDORSEMENT

[1] It has been said, (in poetic form by Robert Frost no less), that “Good fences make good neighbours”.

[2] In this case, however, erection of a gated fence over a strip of land leading to and from a beach has fostered a great deal of animosity and litigation between certain neighbours on the otherwise tranquil shore of Lake Huron, in the community of Port Franks, Ontario.

[3] In essence, the applicants want this court to order complete removal of the fence as soon as possible, and an end to perceived interference with their use and enjoyment of registered property rights.

[4] The respondents, on the other hand, argue that protection of their property rights requires court confirmation of their entitlement to erect the fence, as well as injunctive relief to ensure that the fence and gate remain in place and effective.

Background

[5] The background to the present impasse may be summarized as follows:

• The parties own nearby parcels of land in a recreational cottage community commonly known as the “Windsor Park Subdivision”, in Port Franks.

• Originally, the relevant area included 9 rather large and irregular lakefront lots, which were approximately 300 feet in depth with frontages averaging 200 feet in width. Those large lots were situated between the shore of Lake Huron, (to the north), and Bond Road, (to the south). Near the location in question, Bond Road generally runs in an east-west direction; i.e., parallel to the shore and beach which lie to the north.

• Further development of the relevant area occurred in the early 1950s, when a number of the original large lots were subdivided. In the area that is the focus of the parties’ current dispute, the chosen method of further subdivision did not attempt creation of numerous strips of land each having an immediate border with Bond Road to the south and the Lake Huron beach to the north. (That would have guaranteed road and beach access to each property, but also would have resulted in each such subdivided lot having a very narrow width.) Rather, the chosen method of further subdivision generally created two east-west rows of wider subdivided properties, with some positioned immediately next to the beach, (but lacking any border with Bond Road), and some positioned immediately next to Bond Road, (but lacking any border with the beach). In what seems to have been an obvious effort to guarantee that the resulting beachside properties would not be inaccessible from the road, and that the beach would not be inaccessible from the resulting roadside properties, the scheme of further subdivision also incorporated certain other arrangements, including registered “right of way” entitlements.

• The relevant subdivision and “right of way” arrangements underlying the parties’ present dispute involve what are now five distinct parcels of land. Their position relative to each other is easily depicted by maps and diagrams, but more difficult to put into words. However, by way of a very broad and informal description:

o The five relevant parcels of land collectively form a large square having Bond Road as its southern boundary, and the Lake Huron beach as its northern boundary.

o A narrow strip of land, (15 feet in width from east to west), runs through the centre of that overall square in a north-south direction, (i.e., the entire distance between Bond Road to the south and the Lake Huron beach to the north), bisecting the remaining portions of the overall square into western and eastern “halves”.

o Those remaining western and eastern “halves” of the square are themselves then bisected by median boundaries that run in an east-west direction; i.e., evenly dividing each remaining half of the overall square into one residential lakeside property (to the north) and one residential roadside property (to the south).

o In the result, the large overall square I described is divided into one relatively narrow and central north-south strip of land directly connecting Bond Road and the Lake Huron Beach, and four adjacent residential properties, (to the northwest, northeast, southeast and southwest respectively), each of which abuts that narrow and central north-south strip of land. (Although the parties have referred to that narrow central strip of land as “the right of way” or “the ROW”, I think it worth emphasizing that it actually is a fifth and separately divided and owned piece of land, in respect of which rights of way have been conferred. I will refer to it hereafter as “the central strip”.)

o Ownership of the central strip originally remained with the developer. However, very broad rights of way in relation to the central strip were conferred and registered in favour of the four newly created and immediately adjacent subdivided properties. In particular, the registered legal descriptions conferred, upon those four adjacent subdivided properties, “a right of way … over, along and upon, for all purposes, the easterly 15 feet of [the original] Lot Number 3, in even perpendicular width”. Legal use of the central strip to access the beach from Bond Road (or vice versa) accordingly was restricted to its owners, the owners of the four adjacent residential properties with registered rights of way, and those authorized by the owners of those five properties. In particular, no other properties in the Windsor Park Subdivision have any conveyed and registered right of way in relation to the strip of land in question. Others who wished to legally access the beach from Bond Road or vice versa could do by alternate means, (including a substantial road allowance at the north end of Wedd Road, which runs in a north-south direction to the east).

o Throughout the development process, legal ownership of the actual beach along the length of the developed area, (including the beach immediately to the north of the central strip and four adjacent residential properties), also was retained by the developer.

• In 1967, the developer transferred legal ownership of the beach, (but not the central strip), to Windsor Park Association Inc., (“the WPAI”), a non-share capital corporation that had been created a few years earlier to promote the interests of those owning property in the Windsor Park area.

• By 2006, ownership of the five parcels of land making up the overall square described above apparently was as follows:

o the northwest quadrant was owned by the respondents David Shaw and Beverley DuBrule;

o the northeast quadrant was owned by the respondents Harold and Margaret Caughlin;

o the southeast quadrant was owned by the respondents Robert and Ann Marie Van Dyk;

o the southwest quadrant was owned by Tamara Rogerson, (who seems to have rented her property to vacationing tenants from time to time, and who would later sell her property to the Przewiedas); and

o the central strip was owned by Mollie Patterson and Joe Armstrong, (the daughter and son of the original developer).

• Up to and including 2006, incidents of trespass in relation to those five parcels of land, and the central strip in particular, apparently were rare. Moreover, those who did trespass also ceased to do so when informed about the private and restricted nature of the property.

• The respondents say that, in relation to trespass concerns, matters changed significantly after the WPAI’s 2006 annual general meeting, when a member made a presentation erroneously asserting that all rights of way between Bond Road and the beach, (including those associated with the central strip), were intended for use by all residents of the Windsor Park Subdivision. The WPAI’s board of directors, (which included the respondent Mr Shaw at the time), publicly rejected that assertion and took steps, (including circulation of a newsletter), to inform all residents of the subdivision that the only legal access to and from the beach enjoyed by all residents was the aforesaid allowance at the north end of Wedd Road.

• The respondents say that, notwithstanding that public disclaimer by the WPAI, unauthorized use of the central strip then escalated dramatically, and became much more determined, from the summer of 2007 onwards. The respondents say that most of the trespassers were and are pedestrians, many of whom are recognized by the respondents as individuals who reside elsewhere in the Windsor Park Subdivision.

• From 2007 onwards, the respondents admittedly have engaged in various steps to address what they regard as a serious trespassing problem that undermines their enjoyment of their properties. For example:

o The respondents say that, between 2007 and 2009, they “politely advised” trespassers that access to the central strip was deeded to the owners of the four abutting properties for their exclusive use, and asked the trespassers not to use the central strip again. (The applicants, relying on information provided by Ms Rogerson and their own experience as seasonal residents of the area since 1985, say that conduct of the respondents in that regard has been more extended and aggressive; e.g., with Mr Shaw and Ms DuBrule in particular “continuously and consistently” photographing and rudely confronting any and all users of the central strip. Such conduct is said to have included Mr Shaw and Ms DuBrule repeatedly accosting tenants of the Rogerson/Przewieda property to question who they were, take photographs, and dictate what portions of the beach could be used.)

o When verbal requests failed to end or reduce trespassing activity to the respondents’ satisfaction, they then installed “No Trespass” signs near the north and south ends of the central strip, in the spring of 2010. Installation of the signs was coupled with consultations with the Ontario Provincial Police, who advised the respondents that trespassing charges thereafter would be pressed on the respondents’ behalf if the respondents recorded the identities of trespassers and provided the police with that information.

o The respondents provided no evidence of any steps taken thereafter to involve the police, or what the results of such efforts may have been. However, it seems the signs alone failed to deter further trespass to the respondents’ satisfaction, and instead prompted apparent demonstrations of animosity by those determined to use the central strip. (In addition to the Shaw and DuBrule property being vandalized with eggs, one of the “No Trespass” signs was stolen in late 2011 or early 2012, and both had to be replaced the following Spring. Photographs of the signs currently in place read “PRIVATE LANEWAY – PLEASE DO NOT TRESPASS”.)

o In June of 2010, Mr Shaw sought further assistance from the WPAI in dealing with what he characterized as the “ever-increasing trespass problem”, as far as the central strip was concerned. However, it seems the position of the WPAI had changed since Mr Shaw’s time on its board. In particular, a lawyer representing the WPAI and its president responded with correspondence asserting that the central strip had “always been intended for use by all Windsor Park residents”. The letter went on to allege that the respondents’ ongoing efforts to “block public access” and “appropriate the path” as a “personal fiefdom”, (e.g., by “posting illegitimate ‘No Trespassing’ signs, photographing individuals using the path and threatening prosecutions”), were both “unlawful” and “childish”. A lawyer retained by Mr Shaw responded with correspondence emphasizing the actual legalities of rights of way pertaining to the central strip. However, there apparently then was no further response from the WPAI’s lawyer, and the respondents say that trespasser use of the central strip “continued unabated”.

o In early 2011, the respondents collectively determined that securing ownership of the central strip “would provide the legal clout” allowing them “to take whatever further steps were needed to eliminate trespass”. The respondents asked Ms Rogerson to participate, but she responded with a written indication that, while she and her husband agreed the central strip was not intended for the general public, they also did not share the respondents’ concern about local residents using the central strip to access the public beach. They did not want to spend effort and money on lawyers to investigate making “the path” private.

o Throughout the remainder of 2011 and much of 2012, the respondents then pursued efforts to determine who had title to the central strip, approach those owners, and acquire formal ownership of the land. Those steps were completed by October of 2012, at which point the respondents collectively had become joint owners of the central strip.

o In January of 2013, the respondents followed up on their acquisition of title over the central strip by delivering registered letters to the new WPAI president and other local residents known to have trespassed over the central strip in the past, (including the applicant Mr Przewieda). The letters informed recipients of the property’s new ownership status, confirmed that rights of way in relation to the central strip were conferred only on the four adjacent properties, and advised that further trespass would not be tolerated. Shortly after delivery of the letters, the Shaw and DuBrule property was again vandalized with eggs.

o In May of 2013, Mr Shaw and Ms DuBrule met with the president of the WPAI, seeking an “amicable resolution to the ongoing trespass problem”. However, the president was unreceptive, made it clear the association would not assist the respondents, and suggested that the respondents should be prepared to “put up with the trespassing”. Shortly thereafter, the WPAI also circulated draft “Beach Use Regulations” to residents of the subdivision, suggesting that the beach property owned by the association included the central strip. That prompted further correspondence to the WPAI from the respondents’ new lawyers, confirming the true state of title in relation to the central strip. At the WPAI’s annual general meeting the next month, the president apologized for that error and indicated that the draft Beach Use Regulations would be revised accordingly. However, the respondents say trespass across the central strip continued unabated” throughout 2013.

• The more immediate genesis of the parties’ present dispute was the applicants’ purchase of Ms Rogerson’s property, (i.e., the residential property in the southwest quadrant of the overall square described above, the municipal address of which is 7434 Bond Road), in May of 2013. Formal title to the property was taken in the name of Mr Przewieda and a corporation of which Mrs Przewieda is the principal, (but in respect of which Mr and Mrs Przewieda are equal shareholders). The Przewiedas were not newcomers to the Windsor Park Subdivision, as they had owned a number of other subdivision properties, for their personal use and for use as rental properties, prior to their purchase of the Rogerson property, including a property known by its municipal address as 7435 Bond Road, (which is located on the south side of Bond Road, immediately across from the Van Dyk property). However, the Przewiedas decided to also purchase the Rogerson property for their own use, and for the use of vacationing tenants.

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