Court File and Parties
COURT FILE NO.: 17-63161
DATE: 2018/04/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pasre Holdings Inc. Plaintiff/Moving Party
AND
Rodger William Goodes, Cynthia Louise Goodes, Bernd Bogehold and Joseph Neff Defendants/Responding Parties
BEFORE: The Honourable Justice L. Sheard
COUNSEL: Barry L. Yellin and Kayla A. Carr, Counsel for the Plaintiff/Moving Party
Mitchell B. Rosenblatt, Counsel for the Defendants/Responding Parties, Rodger W. Goodes and Cynthia L. Goodes
No One appearing for Bernd Bogehold or Joseph Neff
HEARD: March 19, 2018
ENDORSEMENT
Nature of the Proceeding
[1] There were two motions before the Court.
[2] The plaintiff moved for an interim order enjoining the defendants/responding parties on this motion, Rodger William Goodes and Cynthia Louise Goodes (collectively “the Goodes”) and anyone on their behalf, from blocking, dumping or parking on, or otherwise trespassing on lands owned by the plaintiff (the “Pasre Lands”) or registered in the name of Joseph Neff (the “Neff Lands”). Together, the Pasre Lands and the Neff Lands comprise a significant portion of Neff’s Lane, a lane or road, that extends from Highway 8 in Flamborough, Ontario, to properties owned by the defendant, Bernd Bogehold (the “Bogehold Lands”), and by the plaintiff. For the purposes of this motion, the Pasre Lands and the Neff Lands are referred to collectively as the Disputed Lands.
[3] At the hearing, the plaintiff limited the relief claimed to the Pasre Lands, only. The plaintiff also asked for an order that the Goodes remove any substance, structure or item from the Pasre Lands, that currently blocks access to and from the Pasre lands.
[4] The plaintiff’s motion was as a result of the Goodes dumping gravel on the Disputed Lands with the intention of blocking anyone from using the Disputed Lands, and in particular, preventing the plaintiff and its tenants from using the Disputed Lands.
[5] The Goodes moved for an order enjoining the plaintiff or anyone authorized by the plaintiff from entering upon the Disputed Lands and/or from interfering with the Goodes’ use of the Disputed Lands and for an order that the plaintiff remove any object, structure, substance, vehicle etc. which obstructs ingress and egress to the Disputed Lands.
Overview of the Facts
[6] The Goodes’ property abuts the Neff Lands and the property owned by Bogehold.
[7] The Goodes have no registered easement or right-of-way over the Disputed Lands. Although their property is not landlocked, their usual access to their home from Highway 8 is via the Disputed Lands, and requires them to cross over lands owned by Bogehold, which connects to the Goodes’ driveway. In its claim, the plaintiff does not seek to prevent the Goodes from using the Disputed Lands but, rather, seeks a declaration that the plaintiff and the Goodes have a prescriptive right-of-way over all of the Disputed Lands.
[8] Bogehold has taken no position on this motion. He apparently lives abroad and has leased his land to a commercial farmer who does not use the Disputed Lands for its access to the Bogehold Lands.
[9] The Neff Lands were transferred to Joseph Neff in 1873. The Parcel Register does not show any transfer of the Neff Lands after that date. No other evidence of ownership of the Neff Lands has been put forth, but there is some evidence that, historically, the municipality may have assumed ownership of some of the Disputed Lands. More recently, the municipality has denied ownership.
[10] In July 2017, the Goodes began to park their vehicles on the Disputed Lands and, beyond where they used the Disputed Lands to access their driveway (over the Bogehold lands), the Goodes caused two piles of gravel to be dumped in the middle of the Disputed Lands. The cars and/or gravel pile blocked and prevented the plaintiff, and or those authorized by the plaintiff, from using the Disputed Lands.
[11] The Goodes candidly acknowledge that they deposited gravel on the Disputed Lands on July 25, 2017 and left the gravel there to prevent the Disputed Lands from being used by the plaintiff or its tenants, who had begun using the Disputed Lands to access a gate located on the property owned by the plaintiff.
[12] In part, the Goodes justify blocking the Disputed Lands on the basis that they own the Disputed Lands by reason of adverse possession. The Goodes bought their property in 2007 but assert that their predecessors in title used the Disputed Lands to the exclusion of the plaintiff and thereby adversely possessed the Disputed Lands, which includes the Pasre Lands. The Goodes also identify conduct in 2017 on the part of the plaintiff, or their tenants, that they say interfered with their use of the Disputed Lands.
Disposition of the Motion
[13] The parties seek competing orders. The plaintiff seeks an order that the Goodes move their gravel and be prevented from blocking the Pasre Lands. The plaintiff does not ask for an order prohibiting the Goodes from using the Disputed Lands, including the Pasre Lands.
[14] The Goodes seek an order that would keep the plaintiff from using the Disputed Lands, including the Pasre Lands, to which the plaintiff has legal title. The Goodes also seek an order that Pasre and those authorized by Pasre refrain from doing anything that would interfere with the Goodes enjoyment of the Disputed Lands.
[15] As stated above, the plaintiff does not seek to keep the Goodes off the Pasre Lands or off any of the Disputed Lands. On this motion the plaintiff asks only that it be permitted free access to and use of the land to which it has legal title, namely, the Pasre Lands.
[16] The crux of these motions is whether the plaintiff has lost title to the Pasre Lands, and is no longer entitled to use the Pasre Lands or whether the Goodes are trespassers and interfering with the plaintiff’s use and enjoyment of its own land.
[17] On the evidence put before me on this motion, there is no evidence upon which I could conclude that the Goodes acquired legal or equitable title to the Pasre Lands by reason of adverse possession. Further, on the evidence put forth on this motion, there is no basis to conclude that, when they bought their property in 2007, the Goodes believed that the vendors had acquired possessory title to the Pasre Lands. In fact, the opinion of the Goodes’ lawyer on the purchase leads to the opposite conclusion.
[18] The Goodes have provided some affidavit evidence that speaks to the historic use and access of the Disputed Lands. That evidence does not support a finding that the plaintiff lost legal title to the Pasre Lands. Accordingly, based on the evidence on the motions, I conclude that the plaintiff has legal title to the Pasre Lands, subject, perhaps, to a right-of-way in favour of a number of abutting landowners.
[19] I conclude that the relief sought by the plaintiff should be granted and that Goodes must forthwith remove any gravel or other impediment that they have placed on the Pasre Land. For similar reasons, the cross-motion brought by the Goodes is hereby dismissed.
Analysis
The test on an interlocutory injunction
[20] An interlocutory injunction may be granted where it appears to the court to be just or convenient to do so.[^1]
[21] The three-part test for an interlocutory injunction is found in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1S.C.R. 311 at para. 43:
(i) Is there a serious issue to be tried?
(ii) Will the moving party suffer irreparable harm if an injunction is refused?
(iii) Does the balance of convenience favour granting an injunction?
Is there a serious issue to be tried?
i) Loss of Title by Adverse Possession
[22] Based on the evidence on this motion, I conclude that the Goodes have failed to show that there is a serious issue to be tried as to whether the Goodes, or their predecessors in title, have acquired title to the Pasre Lands by way of adverse possession. As the registered owner of the Pasre Lands, the plaintiff is prima facie entitled to the use of its lands, without interference by the Goodes or others.
[23] On this motion, the onus is on the Goodes, who seek an order allowing them to continue to interfere with the plaintiff’s use and enjoyment of land to which it has legal title, to establish that they have a strong prima facie case that the plaintiff lost title to Pasre Lands by reason of adverse possession.
[24] The Real Property Limitations Act[^2] provides that one can acquire possessory title to a property and extinguish the registered owner’s title after a period of 10 years. To acquire possessory title, a claimant must prove:
(i) actual possession of the subject lands for 10 years;
(ii) that the possession was with the intention of excluding the true owner from possession; and
(iii) that the true owner was in fact effectively excluded from possession for 10 years.[^3]
[25] Title to the Disputed Lands was transferred from the Land Registry System into the Qualified Land Titles system on May 26, 1997. One consequence of registration in the Qualified Land Titles system is that it was no longer possible to acquire title to land by way of adverse possession.
[26] The Goodes’ evidence falls short of establishing adverse possession in the 10 years prior to May 26, 1997. In fact, the Goodes put forth no evidence to show that the true owner was excluded from possession of the Pasre Lands.
[27] The Goodes submit that they need not establish that the true owner was excluded because the owners of the Pasre Lands never sought to use the Pasre Lands: why exclude an owner who never sought to use the land?
[28] There is no legal basis for the Goodes’ argument that an owner of land must use every inch of it or risk losing it. This “use it or lose it” argument is not the law. Non-use by an owner of his or her land is insufficient to establish the third element of the three-part test of adverse possession as the titled owner is presumptively in possession.[^4]
[29] The Goodes also failed to establish any evidence that the true owners were excluded from possession or that there was any intention of excluding the true owners from possession. In other words, the evidence has failed to establish any of the three-part test of adverse possession.
[30] By contrast, the plaintiff has shown that the Disputed Lands were used by others in the 10-year period prior to May 26, 1997. That evidence was not necessary to establish the plaintiff’s right to use its land but may be relevant to the plaintiff’s claim to a right-of-way over the Neff Lands. That is an issue for trial.
[31] The Goodes submit, and the Court accepts, that in some cases, the moving party must go beyond demonstrating that there is a substantial issue to be tried and establish that it has a strong prima facie case. In this instance, that argument works against the success of the Goodes’ motion.
[32] The Goodes’ factum references Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), [2003] O.J. No. 3669 (S.C.J.) (at para. 24), in which Henderson J. held that in certain cases the first criterion of the traditional (three-part) test for granting an injunction should be emphasized such as in cases in which it is alleged that the defendants are interfering with the plaintiff’s property rights, the defendants are breaching a municipal by-law and are engaging in civil disobedience.
[33] Applying that reasoning here, the evidence supports a conclusion that the Goodes are interfering with the plaintiff’s property rights by piling gravel on the land owned by the plaintiff to prevent the plaintiff from using its own land. At para. 25, Henderson J. quoted with approval from the learned text of Justice Robert J. Sharpe, Injunctions and Specific Performance[^5], who stated:
Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.
[34] Further, at para. 26, Henderson J. quotes from paragraphs 4.10 of the Sharpe text:
Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass.… Where property rights are concerned, it is almost always that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.
[35] At best, the Goodes have shown some entitlement to travel over the Pasre Lands – a right acknowledged by the plaintiff - but they have failed to show that their entitlement to use the Disputed Lands or, in particular, the Pasre Lands, extinguished the sacrosanct property rights that belong to the plaintiff as the registered owner of the Pasre Lands.
Will the moving party suffer irreparable harm if the interim injunction is not granted?
[36] The second step in the injunction analysis is to give consideration to the effect of the injunction. The Goodes argue that, as the plaintiff had not been using the Pasre Lands, the Court should treat that as the status quo, which ought to be maintained until trial.
[37] Given that this motion was precipitated by the actions of the Goodes in the blocking of the plaintiff from using the Disputed Lands (including the Pasre Lands), granting the Goodes an injunction would be to preserve the status quo created by the Goodes’ self-help action. In fact, the status quo that existed prior to July 2017 was that the Disputed Lands were free of obstructions. The plaintiff argues that by piling gravel on the Pasre Lands, the Goodes have committed an act of trespass; to allow them to maintain that status quo would be to reward that improper act.
[38] The evidence shows that there has been a course of conduct related to the use of the Disputed Lands. While it may be that the plaintiff seeks to increase its use of the Pasre Lands, there is some evidence that the Disputed Lands have been used as a laneway or road by the plaintiff. Further, the evidence is that the Goodes have been using the Pasre Lands as a laneway or road; the way the plaintiff seeks to use the Pasre Lands. There is also evidence that the Disputed Lands were historically used by other abutting landowners as a road and even treated as a municipal road, as evidenced by signs on the Disputed Lands installed by the municipality; that the municipality used to plow and that a by-law was required to close part of the Disputed Lands. That evidence undermines the arguments advanced by the Goodes that there is no established course of conduct related to the use of the Disputed Lands.
[39] In their cross-motion before me, the Goodes seek, in part, an order enjoining the plaintiff or anyone acting on the authority of the plaintiff, from interfering with the Goodes’ enjoyment of the Disputed Lands. The Goodes assert that the plaintiff or their predecessors in title have not used the Disputed Lands in the past and that the plaintiff’s use of them now interferes with the Goodes’ enjoyment of the Disputed Lands.
[40] The Goodes have not established an ownership interest in the Disputed Lands nor even a prima facie case establishing that interest. Therefore, whether and to what extent the Goodes have a right to enjoy the Disputed Lands has not yet been established. Therefore, even if I were to accept that increased traffic on the Disputed Lands or on the Pasre Lands lessens the Goodes’ enjoyment of the Disputed Lands, at this stage in the proceedings, that would not be a sufficient basis to interfere with the plaintiff’s prima facie property rights.
[41] The question of harm applies also to the cross-motion brought by the Goodes. It is difficult to conclude that either side of this dispute would suffer irreparable harm if the injunction each requests is not granted. Quite apart from a consideration of the ownership rights of the plaintiff to the Pasre Lands, were I only to weigh the relative harm to the parties, I would conclude that the plaintiff suffers the greater harm by being prevented from using its own land. The plaintiff also puts forward some evidence that its tenants have been required to load and unload horses on Highway 8, which creates a safety risk to the horses and to those doing the loading and unloading.
[42] Even if the relief sought by the plaintiff is granted, the Goodes will continue to be able to use the Disputed Lands and to drive their vehicles to and from their home and Highway 8. Therefore, it is difficult to conclude that allowing the plaintiff to use the Pasre Lands for that same purpose could reasonably be seen to cause any real harm to the Goodes. It goes without saying that the Goodes will suffer no harm by being required to remove the piles of gravel that they deposited on the Pasre Lands and to refrain from again blocking the Pasre Lands with vehicles or in other ways.
Does the balance of convenience favour granting an injunction?
[43] The third step in the injunction analysis is the weighing of the balance of convenience. Here, I determine that the balance of convenience favours the granting of the injunction sought by the plaintiff. While increased vehicular traffic might give rise to safety concerns for pedestrians using the Disputed Lands, that is so even if it is only the Goodes who use the Disputed Lands. Further, there do not appear to be any safety concerns specific to the use of the Disputed Lands by the Goodes’ adolescent children, who are old enough to know to look both ways before crossing a street.
[44] For the reasons set out above, I conclude that, by dumping gravel on the Pasre Lands, the Goodes have trespassed upon the Pasre Lands and that the relief now sought by the plaintiff ought to be granted. Accordingly, the following orders shall issue:
- An interim order that the defendants, Rodger William Goodes and Cynthia Louise Goodes, and their assigns, agents, servants and anyone on their behalf, either directly or indirectly, are hereby enjoined from dumping or parking on, or blocking, or otherwise trespassing on the lands and premises legally described as:
PT Lot 3 Concession 2 West Flamborough, As in HL338404; PT Lot 3, Concession to West Flamborough, Parts 3 & 4, 62R5480; Flamborough City of Hamilton (the “Pasre Land”).
- An interim order that the defendants, Rodger William Goodes and Cynthia Louise Goodes shall forthwith remove any substance, structure or item from the Pasre Land that is currently blocking access to and from the Pasre Land.
Costs
[45] Following the conclusion of argument on the motions, the parties submitted Costs Outlines. They are very similar. The Plaintiff’s Costs Outline shows actual legal fees and HST totaling $30,452.94 and disbursements and HST of $10,973.26. The Goodes’ Amended Costs Outline shows actual legal fees and HST of $26,741.45 and disbursements and HST of $6,863.15.
[46] In the Goodes’ Costs Outline, the partial indemnity rate appears to have been calculated at 77.7% of the actual rate. In the Plaintiff’s Costs Outline, the partial indemnity rate appears to have been based on 77% of actual rate.
[47] As the successful party on the motions, the plaintiff is entitled to its costs. Absent evidence that offers to settle were exchanged and should be taken into account in the determination of fees, I would award partial indemnity fees to the plaintiff as per its Costs Outline in the amount of $28,998.34.That amount takes into consideration the reasonableness of the fees and the reasonable expectation of the parties as to what the unsuccessful party would expect to pay on the motion. The similarity in the fees and disbursements is most persuasive on that point.
[48] Should either party seek to make further submissions respecting costs, they may do so within 15 days of the date of the release of this Endorsement. Those submissions should not exceed three pages in length together with copies of any offers to settle which may be applicable. If I do not receive costs submissions, then I will issue a brief endorsement confirming my decision respecting costs, as set out above.
Justice L. Sheard
Date: April 4, 2018
COURT FILE NO.: 17-63161
DATE: 2018/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Pasre Holdings Inc. Plaintiff/Moving Party
AND
Rodger William Goodes, Cynthia Louise Goodes, Bernd Bogehold and Joseph Neff Defendants/Responding Parties
BEFORE: The Honourable Justice L. Sheard
COUNSEL: Barry L. Yellin and Kayla A. Carr, Counsel for the Plaintiff/Moving Party
Mitchell B. Rosenblatt, Counsel for the Defendants/Responding Parties, Rodger W. Goodes and Cynthia L. Goodes
ENDORSEMENT
Sheard J.
Released: April 4, 2018
[^1]: Section 101, Courts of Justice Act, R.S.O. 1990 C. c-43; Rule 40, Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^2]: R.S.O. 1990, c. L. 15 [^3]: Fazzari v. Pynn, 2013 ONSC 7743, at paras. 42, 43; see also Brooker v. Pepper, 2017 ONCA 532, at para. 32 [^4]: Fazzari, at para. 46 [^5]: Toronto, Canada Law Book Inc., 1994