Court File and Parties

Court File No.: 19-16 Date: June 23, 2016 Ontario Superior Court of Justice

Between: Thomas George Bamford, Lynne Rose-Ann Bamford, Joanne Earl, Keith Burrow and Shari Burrow, Applicants – and – Joel Lariviere and Pauline Lariviere, Respondents

Counsel: David G. Heeley, for the Applicants Ralph A. Lee, for the Respondents

Heard: at Perth on May 20, 2016

Ruling on Application

PEDLAR, J.

[1] This is an action over the use of a right-of-way, which the Applicants have over land owned by the Respondents and are entitled to use for the purposes of boat launching only. The question is whether the actions taken by the Respondents amount to a substantial interference with the Applicants’ permitted use of that right-of-way. I thank both counsel for these parties for preparing factums and I will refer to the background information and law, as stated in those factums in dealing with this matter.

[2] The Applicant, Joanne Earl, owns the property, part of the West Half of Lot 19, Concession 12, Township of Lanark Highlands, County of Lanark, being Part 1 on Reference Plan 26R-3041, together with a right-of-way over Parts 5, 6 and 7 on the said Plan for the purpose of egress and ingress only for the subject lands to the Township’s maintained roads and together with a right-of-way over Part 4 on the said Plan for the purpose of boat launching only. It is that Part 4, where it meets the river between Taylor Lake and Clayton Lake, that is the main area of dispute between the parties.

[3] The Applicants, Thomas and Lynne Bamford, are the owners of Part 2 on the same Reference Plan 26R-3041 and have the same rights-of-way that are set out above.

[4] The Applicants, Keith and Shari Burrow, are the owners of Part 3 on the said Reference Plan 26R-3041 and also have the same rights-of-way that are set out above.

[5] The Respondents, Joel and Pauline Lariviere, are the owners of the lands known as Parts 4, 5, 6 and 7 on Plan 26R-3041. They bought the property on May 31, 2013 from the former owners who had owned that property since 2004.

[6] Plan 26R-3041 was established by Joseph and Maria Gonzalez in 1991 by way of severance.

[7] Instrument Number RN107406, which is attached to the affidavit of Joanne Earl and filed in the Application Record, is an agreement made by Joseph and Maria Gonzalez, dated the 18th day of June, 1991, to deal with the use and maintenance of the right-of-way described as Parts 4, 5, 6 and 7 on Plan 26R-3041. That agreement states that Joseph and Maria Gonzalez own Parts 1, 2 and 3 on that Plan and those are the three lots that were eventually transferred to the Applicants herein.

[8] The Agreement states as follows:

The owners of Parts 1, 2 and 3 of 26R-3041:

Save as otherwise herein provided, no owner shall in any way alter, block, repair or demolish the right-of-way, except with the written approval of all other owners;

Must contribute proportionately to the maintenance and repair of the right-of-way including repair and replacement of gravel, grading, snow removal or otherwise;

If the right-of-way is damaged by a particular owner, that owner is solely responsible for the repair of same;

Obligations are binding on successors;

The annual municipal taxes are to be proportionately paid by the owners, estimated to be $100.00 each.

[9] It is important to note that the definition of “Owner” in paragraph 6 of this agreement, registered as Instrument Number RN107406 defines “Owner” as “the party of the second part, third part and fourth part...” The Respondents are not “owners” within the terms of this agreement as they are the owners of Part 4 on Reference Plan 26R-3041 over which the Applicants have a defined right-of-way for the purposes of boat launching only.

[10] Without any consultation with the Applicants, the Respondents built a dock on their property in the summer of 2014 where Part 4 on the Plan 26R-3041 reaches the river between Taylor Lake and Clayton Lake. Because the Respondents own Part 4 and are not defined as “Owners” for the purposes of the agreement registered on title and referred to above, there was no legal requirement for them to advise or consult the Applicants, unless the construction of that dock, and their use of it, results in a substantial interference with the Applicants’ permitted use of boat launching on the Respondents’ property at that location. It is an understatement, however, to note that as the relative newcomers to the neighbourhood regardless of their legal rights, the Respondents were not sensitive to the Applicants as their new neighbours. Each of us makes decisions about how we will participate as a member of the community in which we reside, including how we balance our own interest versus the common good and the shared responsibilities that lead to healthy relationships, based on mutual respect and support that lead to healthy communities. These parties now share a neighbourhood but not a community, as a result of the lack of communication to the Applicants by the Respondents, of their plans and the opportunity to discuss the issue fully before proceeding.

[11] There are allegations made in the affidavits filed on behalf of both the Applicants and the Respondents about very serious, rude, disrespectful, harmful and potentially criminal activity on behalf of the other parties. To the extent that those allegations contradict each other, I have no way of weighing the credibility of those allegations. Based on my experience as both a litigation lawyer and a judge during the past 46 years, these types of allegations and this type of conduct is, unfortunately, to the detriment of all parties, but not unique to this case. The results are almost inevitably a reduced enjoyment of their properties by all parties involved in this kind of dispute.

[12] As I noted at the time of the hearing, it is almost always a new person moving into the neighbourhood, interrupting the status quo by taking a different view of their rights than what had been the practice in the neighbourhood. For those cases that go to trial, almost inevitably there is a legacy of bitterness and hard feelings which is a direct contrast to a sense of community that would enhance the enjoyment of their properties for all parties involved.

[13] The Respondents not only built the dock, but then placed a total of three boats secured to that dock on a relatively permanent basis, being a motorized runabout, a paddleboat and a pontoon boat. The effect of those boats being located where they are is to reduce the available waterfront space for the purpose of launching boats to allow the Applicants to enjoy their right-of-way for the purpose of boat launching. Depending on which measurement is correct, there is somewhere around 20 to 23 feet of waterfront property still available to the Applicants for the purpose of boat launching.

[14] The parties are not significantly at odds over the law to be applied in this case. They both quote the Ontario Court of Appeal case of Weidelich v. de Koning, 2014 ONCA 736. At paragraph 9 of that judgment, the Court of Appeal quotes the application judge who was quoting from the case of West v. Sharp (1999), 79 P.& C.R. 32 (C.A.), the application judge said at paragraph 24:

There is no actionable interference with a right-of-way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction.

[15] The Court of Appeal goes on to say at paragraph 10:

I agree with the reasons of the motion judge. 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 a purpose identified in the grant.

[16] The Court also states at paragraphs 12, 14 and 15:

[12] 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.

[14] A court, when deciding whether an encroachment results in a substantial interference with the claimant’s use of the right-of-way, will have regard to the terms of the grant and the nature of the encroachment. The determination is a factual one and will turn on the specific circumstances of each case.

[15] The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc., at 257:

In short, the test, ... is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right-of-way be substantially and practically exercised as conveniently as before?

[17] The Applicants here specifically rely on the comments of the Court of Appeal at paragraph 17, which states as follows:

[17] Scott, J. acknowledged that either approach to garage entry and exit was reasonable. He went on, however, to hold that the encroachment was actionable. He said, at paragraph 217:

In the present case the test is not, in my view, whether the means of access still possible is a reasonable means of access. The correct test is whether insistence by the third plaintiff [the holder of the right-of-way] on being able to continue to use the other means of access is reasonable. In my opinion, it is. I do not think it is open to the defendants to deprive the third plaintiff of his preferred means of entry to garage 52 and then to justify themselves by arguing that most other people would prefer some other still available means of entry. Such an argument might avail the defendants if the third plaintiff’s preference was unreasonable or perverse. But, in my view, it is neither of these things.

[18] Based on the evidence available at the hearing of this application, I find that the Applicants have failed to establish that the Respondents have substantially interfered with the Applicants’ limited right to use the Respondents’ property, identified as Part 4 of the Plan referred to above, for the purpose of boat launching only. The Applicants still have the use of approximately one-half of the 40 to 42-foot waterfront that they can use for that purpose. The evidence regarding other uses, such as members of the Respondents’ family driving ATV’s on Part 4, does not establish any significant interference with the Applicants’ ability to launch boats. Unless there is violation of some Municipal noise by-law, some location of vehicles that prohibits the launching of boats or makes it unreasonably inaccessible or reaches the level of an actionable nuisance claim based on an objective standard that would be required to support such a claim, there is no basis for their request that the Respondents cease to use any ATV’s or other recreational vehicles on this right-of-way.

[19] The above findings are based on the information available at the time this application was heard and on the affidavit material filed. This ruling is without prejudice to any resolution of the Small Claims Court action regarding allegations of vehicle damage or any increased inappropriate conduct by any of the parties herein that may be actionable in their own right or the basis for any criminal or quasi criminal charges to be laid.

[20] The application is dismissed based on the above noted findings and without prejudice to renewal of the application if any substantial interference with boat launching does occur in the future or any of the conduct by the Applicants or Respondents is actionable as set out above.

[21] These parties need to recognize that this result is unsatisfactory in terms of the dynamics in their neighbourhood. It is based strictly on a reading of the title documents and the information contained in the affidavits filed. What is needed is a recognition by all parties that it is in their own interests and the common good to re-establish relationships, show a spirit of generosity and work towards a cooperative and supportive community where neighbours are prepared to go the extra mile to help each other rather than continue the dispute. Mistrust and hard feelings need to be replaced by mutual respect and support. This result is not about who is right or wrong, it is simply about the legal ramifications of title documents which may have been misinterpreted or misunderstood even though relied upon in a cooperative manner for the better part of 25 years.

[22] I thank counsel for their assistance in dealing with this matter. If the parties cannot agree on costs, I will receive written submissions not to exceed four typewritten pages together with a draft Bill of Costs for any party claiming costs within 30 days of this ruling with a 10 day right of reply to the other party.

The Honourable Mr. Justice K. E. Pedlar Released: June 23, 2016