Court File and Parties
COURT FILE NO.: 675/15 DATE: 2016-04-14 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANCINE SZYMANSKI Applicant – and – GIUSEPPINA ALAIMO and FRANCESCO ALAIMO Respondents
Counsel: Cameron D. Neil, for the Applicant Soloman Lam, for the Respondents
HEARD: March 30, 2016
REASONS FOR JUDGMENT
Gray J.
[1] This dispute involves a right-of-way over lands owned by the respondents. The applicant claims that the respondents have interfered with her use and enjoyment of the right-of-way. She claims injunctive relief and damages, as well as an order requiring the respondents to contribute to the maintenance of the right-of-way and clearing it of snow in the winter.
[2] For the reasons that follow, the application is dismissed.
Background
[3] Several affidavits were filed on this application. There were no cross-examinations.
[4] The applicant and the respondents own adjoining properties on Kipling Avenue in Woodbridge. The respondent, Guiseppina Alaimo, purchased the property at 7872 Kipling Avenue on August 11, 2008. The applicant, Francine Szymanksi, purchased 7880 Kipling Avenue on April 15, 2014. She purchased it from Ernest Holloway.
[5] In between the two properties is a strip of land, which has been referred to throughout these proceedings as “Block 13”. Ms. Szymanski, the applicant, has a right-of-way over Block 13. The scope of the right-of-way, and for what purposes it may be used, are issues in this proceeding.
[6] Block 13 was formerly part of a longer laneway that led to a private school some distance away from Kipling Avenue. The lands through which the laneway ran were ultimately purchased by a developer, Green Village Homes Inc. In order to develop the lands, it became necessary to extinguish the right-of-way except as it related to the land now owned by Ms. Szymanski. One of her predecessors in title, Norman C. Jackman, used the right-of-way in order to access his property. The right-of-way was extinguished for the most part by order of Justice Taliano of this Court, dated May 4, 1993. In paragraph two of that order, it was stipulated that the right-of-way was released and extinguished save and except for “the respondent Norman C. Jackman who will retain the right to use that parcel or tract of land described as Part 1 on Plan 65R-16477 and Part 1 on Plan 65R-16490 for easement purposes to his own property, which is described under the Registry Act ¸ in schedule A to this order”.
[7] A document was registered under the Land Titles Act to amend the register, to reflect the order of Justice Taliano.
[8] The order of Justice Taliano was issued upon application by Green Village Homes Inc., for an order vesting title to the lands contained within Block 13, “free and clear of any rights-of-way and encumbrances with the exception of a driveway easement in favour of the respondent Norman C. Jackman as hereinafter described.”
[9] On September 11, 2009, the respondents acquired title to Block 13 by way of a tax sale from the City of Vaughan. The respondents paid $30,000 for the land. Mr. Holloway, Ms. Szymanski’s immediate predecessor in title, also submitted a bid for Block 13 to the City of Vaughan, but his bid was lower than that of the respondents.
[10] After Ms. Szymanski purchased 7880 Kipling Avenue, there was some discussion between her common-law husband, Agis Porikos, and Mr. Alaimo, regarding the possible purchase from the Alaimos of Block 13, but those discussions did not result in any change of ownership of Block 13.
[11] Rather quickly, disputes ensued as to the use of Block 13 by both parties.
[12] Mr. Alaimo is an architect, and for a time he conducted his architectural practice from 7872 Kipling Avenue. After a complaint by Mr. Porikos that this contravened the relevant by-laws of the City of Vaughan, the Alaimos moved from the property and Mr. Alaimo now conducts his architectural practice from another location. He now rents 7872 Kipling Avenue to a tenant and it is used for residential purposes.
[13] Block 13 is 33 feet wide at its entrance to Kipling Avenue, and it extends to the far end of Ms. Szymanski’s property, and it abuts her property to the south of it. Running down the middle of Block 13 is a paved driveway which extends almost to the rear of Block 13. Approximately three-quarters of the way down Block 13, it is intersected by a paved driveway that accesses Ms. Szymanksi’s garage to the right, or north, of Block 13.
[14] Before Ms. Szymanski purchased 7880 Kipling Avenue, there was large hedge on the north side of Block 13, immediately adjacent to her property, or perhaps straddling her property, and it ran approximately from the street to the east side of her own driveway. It is unclear as to whether the hedge ran from the west side of her driveway to the westerly edge of her property. Shortly before the closing date for the purchase of Ms. Szymanski’s property, the respondents caused the hedge to be cut down and removed. There is some dispute as to whether the hedge was planted entirely on Block 13, or whether it encroached to some extent on 7880 Kipling Avenue. However, any encroachment, assuming there was one, would have been very minor.
[15] It would appear, from some old aerial photographs and surveys filed, that the hedge has been in place for many decades, and it was in place at the time of the order of Taliano J. in 1993.
[16] It is clear, from photographs filed, that for some period of time, the driveway in the middle of Block 13 was gravelled. At some point in the last several years, the driveway was paved. It would appear that the driveway into Ms. Szymanski’s garage has been paved for a considerably longer period than the driveway on Block 13 itself. The paved driveway into the garage projected some distance into Block 13. The paved portion of Block 13 also extends a few feet past the westerly end of Ms. Szymanski’s driveway that projects into her garage, and it would appear that a vehicle backing out of Ms. Szymanski’s garage would need to back into that paved portion of Block 13 to the west of garage, in order to be able to pivot and drive forward through Block 13 to Kipling Avenue.
[17] It would appear, from photographs filed, that when Ms. Szymanski purchased 7880 Kipling Avenue, there were two stone pillars located on Block 13 on each side of the driveway leading to her garage. The stone pillars were placed on top of what appear to be slightly larger concrete foundations, and at the top of each of pillar was a light fixture. It would appear, from the best evidence available, that while the stone pillars were entirely within Block 13, the concrete foundations encroached by approximately two centimetres on Ms. Szymanski’s property.
[18] In November and December, 2014, the respondents undertook certain work on and around Block 13, which is the subject of complaint in these proceedings.
[19] On November 19, 2014, the solicitors for the respondents wrote to the applicant, and stated, among other things, the following:
As you aware, as the owner of 7880 Kipling Avenue, you have a right-of-way over our client’s Property for the purposes of driving your vehicle to and from your garage located at the rear of your property.
As a courtesy, we are writing this letter is to inform you that our clients will be carrying out some work to the property on November 20, 2014.
In particular, our clients are commencing construction of a fence which will surround and enclose the Property for safety and security purposes. The fence will be erected entirely within the Property’s boundaries and the construction shall be at our clients’ sole cost and expense. The duration of the work will be approximately 2 or 3 days, weather permitting.
The fence will be set back approximately 30 feet from the sidewalk, run the entire length of the Property’s boundary to the north (i.e. the shared boundary with your property), and across the western boundary at the back of the Property.
Two sets of gates will be installed for purposes of ingress and egress from the Property as well as for your continued access to your garage. The first set of gates will be located at the front of the property for entry onto the Property, and the second set of gates will be located in front of your garage. Both sets of gates must be closed after each and every use.
[20] There is no mention in the letter of any destruction of the stone pillars located at each side of Ms. Szymanski’s driveway.
[21] The respondents proceeded to construct the fence as described in the letter. It completely encloses Block 13, commencing at a point approximately 30 feet from Kipling Avenue, except for a portion that is open to Kipling Avenue; a portion that is open to Ms. Szymanski’s driveway; and a portion that is open to the backyard at the respondent’s property. It should be noted that the respondents have their own driveway to their house, that is not located on Block 13.
[22] At the fence that is closest to Kipling Avenue, the respondents installed a gate. They also installed a gate adjacent to the driveway that accesses Ms. Szymanski’s garage. As a result of an interim order of Trimble J. the gates have been removed, and they are currently stored in the backyard of the respondents’ property. The respondents have deposed in their affidavit material that they do not intend to re-install the gates, and they will not obstruct Ms. Szymanski in her use of the right-of-way.
[23] The two stone pillars beside Ms. Szymanski’s driveway were destroyed. The concrete foundations upon which the pillars sat still remain, and the fence traverses the foundations, leaving a small portion of each foundation to the north of the fence on Ms. Szymanski’s property.
[24] The fence posts adjacent to the applicant’s driveway actually encroach on the driveway to a small extent. During argument, respondents’ counsel advised me that his clients undertake to move the fence so that it does not encroach on Ms. Szymanski’s own driveway.
[25] It should be noted that all of the properties in question, including Block 13, are now in Land Titles. Block 13 was placed in Land Titles Absolute in 1966.
[26] The affidavits filed by both parties show a good deal of animosity between the parties. Much of it is not particularly relevant to the issues I need to address. However, some of it is.
[27] It seems clear from the photographs filed that for some period after the respondents purchased their property, a large number of vehicles were parking on Block 13. It is not difficult to conclude that, at least to some extent, this made it more difficult for Ms. Szymanski and her partner to access their garage. Sometimes, vehicles would park on that portion of Block 13 to the west of Ms. Szymanski’s own driveway to her garage, and it is not difficult to conclude that this would have made it more difficult, if not impossible, for a vehicle to back out of Ms. Szymanski’s garage and be able to drive forward through Block 13 onto Kipling Avenue.
[28] Since the respondents have moved out of their property, and have rented it for residential purposes, these issues seem to be resolved. Ms. Szymanski and her partner seem to get along with the respondents’ tenant. However, Ms. Szymanski is concerned that the problems may re-occur if a different tenant is in the property, or the respondents move back in.
[29] While the gates have been removed, Ms. Szymanski and her partner are concerned that the gates remain in the backyard of the respondents’ property, and they remain concerned that the gates may be re-installed. Furthermore, they are concerned that the location of the fence results in a narrowing of the right-of-way that they can use, and they believe there will be difficulty in vehicles passing one another if they are attempting to enter or leave their property.
[30] Ms. Szymanski and her partner had work done on their home, and while they instructed workers not to park on Block 13, the fence made it more difficult to get the work done. They want to install a parking pad on their own property between their house and Block 13, and the fence will make it difficult, if not impossible, to access the parking pad. They note that their property has only a twelve foot frontage on Kipling Avenue, and they believe that by-laws of the municipality will make it impossible for them to access a parking pad directly from Kipling Avenue. Accordingly, they will want to traverse Block 13 in order to access a parking pad.
[31] Ms. Szymanski and her partner note that it is not possible to park a car in their own driveway without it jutting, to a small extent, onto Block 13. They are concerned that the respondents will take the position that they must not do so. Indeed, I note that in these proceedings the respondents have taken the position that Ms. Szymanski and her partner may not park their car in their driveway in a manner that allows a vehicle to jut onto Block 13.
[32] The applicant requested that the respondents clear the driveway through Block 13 from snow during the winter, or at least contribute to the cost of doing so. The respondents refused. They take the position that they and their tenant will not be using Block 13 during the winter, and they have no need to keep it clear of snow. Accordingly, if Ms. Szymanski wants the driveway cleared of snow, she can look after it herself.
[33] As noted earlier, the respondents destroyed the stone pillars that were on each side of Ms. Szymanski’s driveway. This was very upsetting to Ms. Szymanski and her partner, as the pillars clearly matched the style of their house and were an integral part of the property as far as they were concerned. They were given no notice whatsoever that the pillars would be destroyed.
[34] While Ms. Szymanski and her partner were having work done on the house, they had a dumpster parked in their own driveway. When the dumpster was removed after the work was done, some damage was done to the paved portion of the driveway within Block 13. After some argument, Ms. Szymanski paid to repair the damage.
Submissions
[35] Mr. Neil, counsel for the applicant, submits that the grant of this easement is for a right-of-way simpliciter. This means that there is no restriction on the use that can be made of the right-of-way, and it can be used to its full extent. Accordingly, to the extent that the fence restricts the width of the right-of-way, it must be removed. Furthermore, since the right-of-way provides access to the applicant’s property without restriction, it is not sufficient that it simply allows access to the applicant’s garage. It must allow access to any portion of Ms. Szymanski’s property that she wishes to access.
[36] Accordingly, Ms. Szymanski is entitled to use Block 13 to access a parking pad that she wishes to construct adjacent to Block 13. The fence would prohibit her from doing so from Block 13.
[37] Mr. Neil also notes that even as it relates to access to Ms. Szymanski’s own driveway, the fence as constructed juts a few inches into her driveway, and this is clearly an obstruction that impedes access that she formerly was able to enjoy.
[38] As far as the stone pillars are concerned, Mr. Neil submits that they were in their current locations for many decades, and according to the best evidence obtainable now, they were probably there from the date the house was built. Accordingly, it is a reasonable inference that they were in place long before the property was placed under Land Titles, and Ms. Szymanski and her predecessors in title acquired possessory title to the land on which the pillars stood before the land was placed under Land Titles.
[39] Alternatively, Mr. Neil submits, by virtue of section 37 of the Conveyancing and Law of Property Act, the court has discretion to order that a party is entitled to retain encroached land where a permanent structure is built on and encroaches on a neighbouring property. He submits that it would be appropriate for the court to do so here.
[40] Mr. Neil submits that in the circumstances, the respondents are required to contribute to the expense for repair and maintenance of the right-of-way, including clearing it of snow. He points out that the tenancy agreement with the respondents’ tenant provides for parking in the rear of the property, which is accessible only by use of Block 13. He submits that a landlord is obliged to ensure that ice and snow are removed from the exterior of leased premises. Mr. Neil submits that the respondents’ attitude regarding the minor repair of the right-of-way after removal of the dumpster shows that it is necessary that the court delineate the responsibility for maintenance and repair.
[41] Mr. Neil submits that the court has jurisdiction to award damages, and this is an appropriate case for the court to do so.
[42] Mr. Lam, counsel for the respondents, submits that the application should be dismissed.
[43] Mr. Lam submits that his clients are the owners of Block 13, and as such are entitled to make what use of it they wish, subject only to the rights of Ms. Szymanski who has an easement or right-of-way.
[44] Mr. Lam submits that his clients’ use of the land includes placing obstructions on it, provided they do not interfere substantially with the right-of-way to which Ms. Szymanski is entitled. He submits that in the circumstances disclosed here, there is no substantial interference with Ms. Szymanski’s use of Block 13 as a right-of-way.
[45] Mr. Lam notes that historically, as disclosed by the photographs tendered, the travelled portion of Block 13 was by way of a gravelled driveway, which is now paved. Whether gravelled or paved, the driveway did not take up the entire 33 feet in width of Block 13. Indeed, having regard to the sidewalk cuttings on Kipling Avenue, it would not have been feasible to use anything but the gravelled or paved portion of Block 13 as a driveway.
[46] Mr. Lam notes that the fence does not block in any way the paved portion of Block 13. Neither does it block the entrance to Ms. Szymanski’s driveway into her own garage. Accordingly, Ms. Szymanski and her partner are well able to use Block 13 to the same extent that it has always been used by Ms. Szymanski and her predecessors in title – that is, as access to their own garage for vehicles.
[47] Mr. Lam submits that Ms. Szymanski’s predecessors in title did not have access to their property in any way except to their garage, by travelling on the gravelled or paved portion of Block 13 to access their own driveway and their garage. It is clear, from the photographs filed, that because of the hedge that historically bordered the north boundary of Block 13, there was no access to any portion of the property except to that property’s own driveway and garage. Thus, if Ms. Szymanski chooses to place a parking pad next to her home, she has no right to access it from Block 13, and there is no compelling evidence that she cannot access it directly from Kipling Avenue.
[48] Mr. Lam submits that the stone pillars were entirely on Block 13, which belongs to the respondents, and they were perfectly entitled to remove the pillars. He submits that it is clear from the historical evidence that the pillars were in place when the property was placed in Land Titles Absolute in 1966. In order to be placed into Land Titles Absolute, neighbouring owners must be given notice and an opportunity to advance any claims they may have. Once the property is placed into Land Titles Absolute, any possibility of possessory title is extinguished.
[49] Since Block 13 was in Land Titles Absolute, and has been since 1966, there is no possibility that Ms. Szymanski or her predecessors in title had any possessory title to the land on which the pillars stood. To the extent that the concrete structures on which the pillars sat were on Ms. Szymanski’s property, by two or three centimetres, those platforms are still there and Ms. Szymanski still owns the portions on her property. Accordingly, she has not been deprived of anything that she owned before.
[50] Mr. Lam submits that there is no obligation on the owner of property, that is subject to a right-of-way, to maintain the right-of-way unless it is shared and used by the owner. It is clear that the respondents do not wish to use Block 13 during the winter. Accordingly, they have no obligation to contribute to snow removal. The applicant is perfectly entitled to arrange for snow removal herself at her expense.
[51] As far as any other expense for maintenance is concerned, there is nothing in the current circumstances to suggest that the court needs to deal with this issue now. If an issue comes up in the future, the appropriate application can be brought.
[52] Mr. Lam submits that the court has no jurisdiction to entertain a claim for damages where the proceedings are commenced by Application.
[53] The authorities relied on by the parties included Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality) (2010), 98 R.P.R. (4th) 206 (Ont. S.C.J.); Donald v. Friesen (1990), 72 O.R. (2d) 205 (Dist. Ct.); Moore v. Greece (Republic) (2012), 25 R.P.R. (5th) 95 (Ont. S.C.J); Ross v. McLaren (1911), 2 O.W.N. 861 (H.C.J.); Livingston v. Millham (2005), 2005 BCSC 1292, 35 R.P.R. (4th) 258 (B.C.S.C.); Legris v. Mudge, [2014] O.J. No.2183 (Small Claims Court); Mueller v. Lee, [2007] O.J. No. 1045 (S.C.J.); MacRae v. Levy (2005), 28 R.P.R. (4th) 291 (Ont. S.C.J.); Kaminskas v. Storm (2009), 2009 ONCA 318, 95 O.R. (3d) 387 (C.A.); Heng v. Rodriguez (2015), 2015 ONSC 1677, 53 R.P.R. (5th) 153 (Ont. S.C.J.); Weidelich v. De Koning (2014), 2014 ONCA 736, 122 O.R. (3d) 545 (C.A.); 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. (2014), 2014 ONCA 125, 315 O.A.C. 160 (C.A.); Lipischak v. DeWolf (2010), 12 R.P.R. (5th) 203 (Ont. S.C.J.); 394 Lakeshore Oakville Holdings Inc. v. Misek (2010), 2010 ONSC 6007, 98 R.P.R. (4th) 21 (Ont. S.C.J.); Wigle v. Vanderkruk, [2005] O.J. No. 3032 (S.C.J.); Voye v. Hartley (2002), 2002 NBCA 14, 247 N.B.R. (2d) 128 (C.A.); Foster v. McCoy (1998), 203 N.B.R. (2d) 252 (Q.B.); Parkinson v. Reid, [1966] S.C.R. 162; Hefford v. Charpentier (2009), 249 O.A.C. 93 (Div. Ct.); Crowther v. Shea (2005), 2005 NBCA 97, 292 N.B.R. (2d) 97 (C.A.); Przewieda v. Caughlin (2015), 2015 ONSC 3770, 58 R.P.R. (5th) 21 (Ont. S.C.J.); Driedzic v. West, [2000] N.J. No. 337 (T.D.); Zorz v. Attard, [2008] O.J. No. 321 (S.C.J.); Maras v. Milianis (2014), 46 R.P.R. (5th) 124 (Ont. S.C.J.); Scraba v. Crisafi (2014), 2014 ONSC 6780, 49 R.P.R. (5th) 248 (Ont. S.C.J.); Beffort v. Zuchelkowski, 2016 ONSC 583; MacKenzie v. Matthews (1999), 46 O.R. (3d) 21 (C.A.); Lafferty v. Brindley (2001), 8 R.P.R. (4th) 279 (Ont. S.C.J.); varied, 13 R.P.R. (4th) 181 (Ont. C.A.); Walker v. D’Auria (2012), 20 R.P.R. (5th) 129 (Ont. S.C.J.); Dupuis-Bissonnette v. Wm. J. Gies Construction Ltd., [2010] O.J. No. 3398 (S.C.J.); Albiston v. Liu, [2013] O.J. No. 3685 (Small Claims Court); West High Development Ltd. v. Veeraraghaven (2011), 3 R.P.R. (5th) 236 (Ont. S.C.J.); Montgomery v. Van, 2009 ONCA 808; River Oaks Convenience Plaza Inc. v. Al-Qauasmi, [2009] O.J. No. 901 (S.C.J.); CXL Universal Holdings Inc. v. Century 21 Harvest Realty Ltd., [2007] O.J. No. 372 (S.C.J.); PSC Foods Ltd. v. Wong, [2000] O.J. No. 3886 (C.A.); Phillips v. Keefe, 2010 BCSC 2005; Desjardins v. Blick, [2009] O.J. No. 1234 (S.C.J.); Zambri v. Grammelhofer, [2009] O.J. No. 5043 (S.C.J.); Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.J.); and Campbell v. Anderson, [1991] O.J. No. 1191 (Gen. Div.).
Analysis
[54] There are two somewhat competing issues raised here: first, whether the grantee of a dominant tenement has the right to use the entire piece of land that is subject to an easement or right-of-way; second, the right of the owner of the servient tenement to use the land, and in particular to place obstructions or impediments on it.
[55] It is clear that in construing the use that can be made of an easement or right-of-way, the court must look at the instrument creating it, as well as the circumstances present at the time it was created in order to determine its extent and nature: see Sunnybrae, at paras. 94-98; Donald v. Friesen, at para. 22; Moore, at paras. 27 and 35; Ross v. McLaren; Livingston v. Millham, at para. 23. The grantee of the dominant tenement has the right to make reasonable improvements to the right-of-way so that it can be used for its intended purpose: Donald v. Friesen, supra, paras. 36-38. Further, the grantee may exercise such ancillary rights as are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor: see MacKenzie v. Matthews, supra, at paras. 8-14.
[56] In this case, it is clear that, historically, the purpose of the right-of-way was to allow the owner of 7880 Kipling Avenue to access his or her garage.
[57] Block 13 had originally been part of a much longer laneway that led to a school. It is clear from the aerial photographs tendered that because of the distance involved, it was used by vehicular traffic. When the right-of-way was extinguished in 1993, except for the small portion of it used by one of the applicant’s predecessors in title, it was left open for that limited purpose in order that the owner of 7880 Kipling Avenue could have access to his garage. Because of the configuration of the property, access to the garage was not possible in any other way.
[58] It is quite obvious that because of the rather massive hedge that bordered Block 13 to the north, there was no practical access to any part of 7880 Kipling Avenue from Block 13 other than through the garage. It is instructive to note that in the order of Taliano J. confirming the right-of-way for the applicant’s predecessor in title, the words “for easement purposes to his own property” are used. Additional words sometimes used in other cases, such as “for any and all purposes” are not used.
[59] Accordingly, when the surrounding circumstances at the time of the order of Taliano J. are considered, the easement is clearly for the purpose of accessing the garage of 7880 Kipling Avenue by its owner. It cannot be construed as providing access in some other fashion or at some other location other than at the actual driveway entering the garage itself. Indeed, to accept the submission of applicant’s counsel that the right-of-way allows access to 7880 Kipling Avenue from any point on Block 13 would mean that the grantee of the easement would have intended that the hedge, which was located for the most part on Block 13, could be required to be destroyed in whole or in part to facilitate access. I do not accept that this would have been intended. It is more reasonable to conclude that the easement was intended to facilitate access as it was being exercised – that is, through the driveway and garage.
[60] What is also clear, at this point, is that the fence erected by the respondents does not substantially interfere with the use and enjoyment of the easement for its intended purpose, that is, to access the driveway and the garage of the home occupied by the applicant. When one examines the photographs that have been tendered, it is clear that access was traditionally used through the gravelled or paved driveway that runs approximately in the middle of Block 13. The erection of the fence does not interfere with that access that continues to this day.
[61] Assuming that the parking of vehicles by the respondents or their visitors did interfere with access to the garage at some point in the past, that problem seems to have been resolved, and there is no difficulty now. To the extent that a vehicle may park at the rear of Block 13, so that a vehicle has difficulty backing out of the applicant’s garage and driveway, and turning so that it may proceed forward towards Kipling Avenue, the respondents are clearly on notice that that is not to occur.
[62] The gates that were originally installed are no longer in place and I am not persuaded that there is any serious intent to re-install them. If, at any point in the future, the respondents are foolish enough to re-install the gates, that will clearly create an obstruction that would interfere with the applicant’s right-of-way. I accept their undertaking that that will not occur.
[63] It is clear, in my view, that where obstructions are created by the owner of the servient tenement, they will only give rise to a claim on the part of the grantee of the dominant tenement where a substantial interference with the right of access is created: see Weidelich, supra. In my view, the fence does not constitute a substantial interference with access. There is no suggestion that, apart from the parking of cars, to which I have already referred and which is no longer a problem, there is any impediment to the applicant obtaining access to her garage through Block 13.
[64] I am not persuaded that the destruction of the stone pillars beside the applicant’s driveway was unlawful. The pillars were contained entirely within Block 13, except for two or three centimetres of the concrete bases which intrude into the applicant’s property, as far as can be determined. Block 13 has been in Land Titles Absolute since 1966. It could only have been placed in Land Titles Absolute if adjoining owners were given notice and an opportunity to advance any claims they had. There is no evidence that the applicant’s predecessor in title advanced any claim, or if he did, that any such claim was recognized by the Director of Titles. Accordingly, there is no possibility that any possessory interest that may have been held by the applicant’s predecessor in title, or the applicant herself, can now be recognized. While it may have been unneighbourly of the respondents to destroy the pillars without notice to the applicant, I cannot say that the destruction of the pillars was unlawful.
[65] I do not accept that s.37 of the Conveyancing and Law of Property Act has any application here. It applies where a person makes lasting improvements on land “under the belief that it is the person’s own.” There is simply no evidence that when the pillars were first erected, it was pursuant to a belief of the owner of 7880 Kipling Avenue that the land on which they were built belonged to him. If that was the case, one would have expected that when Block 13 was placed under Land Titles in 1966, a claim to the land on which the pillars stood would have been advanced. It evidently was not, or if it was, it was rejected.
[66] As far as keeping the right-of-way free of snow in winter is concerned, this is a not case like West High Development, where it was clear that both parties used the right-of-way. The respondents assert that they will not use the right-of-way in the winter nor will their tenant. Unless they do, they have no obligation to remove snow, which the applicant can do at her expense.
[67] As far as any other maintenance or repair is concerned, it is premature to consider that issue unless and until it arises. Hopefully, if it does arise the parties will be mature enough to resolve it without the necessity of court proceedings. I simply note that the respondents or their tenants will undoubtedly use Block 13 to some extent, in order to access the backyard to 7872 Kipling Avenue, and it would be reasonable for them to contribute to the maintenance and repair of Block 13 should it be necessary.
[68] To the extent that damages are claimed, such a claim cannot be advanced by application: see Hefford, supra, at paras. 24-26.
[69] Of the many cases cited by counsel, I need refer specifically only to two.
[70] Ross v. McLaren, supra, bears some similarities to this case. The defendant had been granted a right-of-way over a laneway abutting his property. The plaintiff proposed to erect gates at both ends of the laneway, and to fence it along the boundary of the defendant’s land. Chief Justice Falconbridge held that this would be “to so burden the defendant’s right as not only to make it less convenient and more burdensome to him, but to render the situation intolerable.” However, the defendant’s house was built to suit the right-of-way. He had three openings on his northern boundary: one for a coal-window, another for his back verandah and a third for his wood-shed. A fence would have prevented the defendant from accessing any of these as he had in the past. That is quite unlike this case, where it is clear that the only access the applicant’s predecessors in title have had is to their garage. If anything, the case illustrates the importance of considering the circumstances in existence at the time of the grant, so as to properly construe what the grant actually involved.
[71] The other case I will address specifically is the Court of Appeal’s decision in Weidelich.
[72] The applicant submits that Weidelich should be confined to its facts. Counsel submits that the court simply found that a specific encroachment in that case did not represent a material or substantial interference with what was a limited right-of-way that had been granted.
[73] I do not agree that the case is as limited as counsel suggests. At para. 10, in discussing the reasons of the judge of first instance, Doherty J.A. stated:
The authorities he cites and others fully support the conclusion that an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for the purpose identified in the grant.
[74] At para. 12, he stated:
The requirement that the dominant owner prove substantial interference to maintain a claim reflects the nature of the dominant owner’s right. He or she does not own the right-of-way or the land upon which the right-of-way runs, but only enjoys the reasonable use of that property for its granted purpose. The dominant owner may only sustain a claim predicated on substantial interference with that reasonable use. The distinction is between the rights of ownership and the right of reasonable use for an identified purpose.
[75] I do not regard what Doherty J.A. said as having limited application. Rather, it governs this case. In my view, the fence erected by the respondents does not substantially interfere with the applicant’s use and enjoyment of the right-of-way for its intended purpose, namely, to allow its use for easement purposes to 7880 Kipling Avenue.
[76] I noted earlier that the respondents undertook not to re-install the gates, and undertook to move the fence posts from the edge of the applicant’s driveway so that they do not encroach on it. I accept those undertakings.
Disposition
[77] For the foregoing reasons, the application is dismissed.
[78] I will entertain brief written submissions with respect to costs, not to exceed three pages together with a costs outline. Counsel for the respondents shall have five days, and counsel for the applicant an additional five days. Counsel for the respondents shall have three days to reply.
Gray J.
Released: April 14, 2016
