Himidan v. 2546579 Ontario Inc., 2018 ONSC 3537

COURT FILE NO.: CV-17-574957

DATE: 20180606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. SHARIFA HIMIDAN

Plaintiff

– and –

2546579 ONTARIO INC., HOOMAN FAZLOLLAHI and HANIEH REZAEI

Defendants

T.A. Pagliaroli, for the Plaintiff

J.D. Farber and M.S.W. Garland, for the Defendants

HEARD: May 29, 2018

REASONS FOR DECISION

SCHRECK J.:

[1] This motion for summary judgment involves a dispute over a piece of land that is about two feet wide and 26 feet long at the back of the yard of one house and adjacent to the driveway of another. For many years, a fence separated the yard and the driveway and was assumed by everybody to mark the property line. While it is clear that the fence has been moved at least once, when and where it was moved are in dispute, as is the ownership of the parcel of land. The plaintiff, who used to own the driveway, and the defendants, who own the yard, both claim ownership.

[2] In 2017, the plaintiff widened her driveway and replaced the fence. She then put her house on the market. After she had entered into an agreement of purchase and sale, the defendants moved the fence onto the plaintiff’s driveway. They claim that the plaintiff moved the fence when she replaced it. She denies this. After the defendants moved the fence, the purchasers with whom the plaintiff had an agreement refused to close the transaction. The defendants later agreed to an interim injunction to move the fence back to where it had been. Eventually, the plaintiff sold the house, but for less than had been agreed upon with the original purchasers.

[3] The plaintiff has sued the defendants for inducing a breach of contract, nuisance and trespass. She takes the position that the disputed land was hers based on the doctrine of adverse possession or because of a prescriptive easement, and that the defendants had no right to move the fence. She claims that in moving the fence, the defendants trespassed on her land, committed a nuisance, and caused the purchasers to breach the agreement of purchase and sale. The defendants deny that the land was the plaintiff’s, that their actions caused the breach of the agreement, or that they intended any such breach. They counterclaim for the cost of moving the fence back to where they say it should be.

[4] The defendants move for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure. They submit that no trial is required as the evidentiary record supports the findings of fact necessary to dismiss the plaintiff’s action and allow their counterclaim. The plaintiff submits that the record is insufficient to make the findings of credibility which she submits are necessary for the determination of the issues.

[5] The following reasons explain why the motion is dismissed. In my view, this action involves issues of credibility and I have no confidence that I am able to resolve those issues on this record. Their resolution requires a trial.

I. EVIDENCE

A. The Properties

[6] The plaintiff, Dr. Sharifa Himidan, owned a house at 45 Moore Avenue in Toronto (“the Moore property”). The house immediately to the east was a corner lot with an address of 43 Cornish Road (“the Cornish property”). It was owned by the corporate defendant, 2546579 Ontario Inc., which was controlled by the individual defendants, Hooman Fazlollahi and his wife, Hamieh Rezaei. They lived nearby on the other side of Cornish Road. The Moore property is irregularly shaped. At the back of the house is a garage which can be accessed using a driveway on Cornish Road which is directly south of the Cornish property. There is a right of way over the driveway in favour of the Cornish property.

[7] The plaintiff purchased the Moore property in July 2005 from Vince Murray, who had owned it since November 1995. There is no evidence as to who owned it before that. The defendant purchased the Cornish property in December 2016 from Dr. Roberta Charlesworth, who had owned it since May 1954.

B. The Fences

[8] When the plaintiff purchased the Moore property, there was a chain link fence between the north side of the driveway and the south end of the Cornish property (“the chain link fence”). There was a large tree on the southwest corner of the Cornish property. There was another fence running north-south on the eastern portion of the Moore property. The post at the south end of that fence obstructed the edge of the door of the garage on the Moore property. The tree was cut down in December 2016 by the plaintiff with the consent of Dr. Charlesworth.

[9] On September 5, 2016, Mr. Fazlollahi and Ms. Rezaei entered into an agreement of purchase and sale for the Cornish property, which was scheduled to close on December 6, 2016. Prior to the closing, the plaintiff had the driveway on the Moore property widened and resurfaced. As well, she had the chain link fence removed and a new fence put up (“the 2017 fence”). Later, in March 2017, she had the garage door replaced with a wider door, although the dimensions of the actual garage did not change.

[10] The parties later became aware of a survey that had been prepared in 1987 (“the 1987 survey”) which showed a fence on the north side of the driveway (“the 1987 fence”). While the plaintiff initially believed that the 2017 fence was in the same location as the 1987 fence, this turned out to be incorrect.

C. The Beginning of the Dispute

[11] In March 2017, about two months after the defendants took possession of the Cornish property, Don Saynor, a neighbour who resided at 29 Cornish Road (which is directly south of the driveway) advised them that he believed that the plaintiff may have widened the driveway by as much as two feet. As a result, the defendants retained a surveyor to prepare a survey. That survey (“the 2017 survey”) showed that the fence that had been erected by the plaintiff encroached on the Cornish property by approximately one and a half to two feet.

[12] On April 10, 2017, the defendants sent an e-mail to the plaintiff advising her of the survey and demanding that the fence be moved to the property line indicated on it. They also advised her that they intended to inform the purchasers of the Moore property (“the Moore purchasers”) about the situation. The plaintiff responded on the same day that she did not agree that the driveway encroached on their property to the extent indicated in the survey. Although the parties agreed to meet, they never did so.

D. The Plaintiff’s Unsuccessful Attempt to Sell Her Property

(i) The Agreement of Purchase and Sale

[13] In February 2017, before the dispute began, the plaintiff entered into an agreement of purchase and sale to sell the Moore property, with a scheduled closing date of May 15, 2017. It is undisputed that the defendants were aware of this.

(ii) The Purchasers Are Made Aware of the Dispute

[14] In an e-mail that Mr. Fazlollahi sent to the plaintiff on April 12, 2017, he stated that if the dispute over the fence was not resolved, he would “pursue legal means which will include a certificate of pending [litigation] which will prevent you from closing your deal”.

[15] On April 21, 2017, counsel retained by the defendants sent a letter to the plaintiff demanding that she (1) “unpave” the driveway, (2) replace the grass that had been there, (3) moved the fence to the property line indicated on the 2017 survey, and (4) pay their legal fees. The letter indicated that if these requests were satisfied, the defendant would “not pursue any remedies it is entitled to under the law to protect its property”. The letter was copied to Jeff Knight, the real estate agent representing the individuals who had agreed to purchase the Moore property.

[16] At some point in late April 2017, Ms. Rezaei had a conversation with the Moore purchasers and advised them that she intended to move the fence to the property line.

(iii) The Defendants Install a Fence on the Plaintiff’s Driveway

[17] On May 9, 2017, contractors hired by the defendants moved the metal fence to the property line, such that it was on the plaintiff’s paved driveway and blocked access to her garage. In response, counsel for the plaintiff wrote to the defendants demanding that they move the fence within 24 hours, failing which she would seek an injunction. On May 10, 2017, counsel for the defendants replied that his clients were within their rights to move the fence. The same day, the plaintiff commenced this action, as well a motion for an interim injunction. The defendants later consented to the interim injunction.

(iv) The Purchasers Refuse to Close the Transaction

[18] On May 10, 2017, a day after the defendants moved the fence, counsel for the Moore purchasers wrote a letter to the plaintiff which included the following:

Following the inspection, our clients made the reasonable assumption that the fence adjacent to the heated driveway (the “Fence”) marked the property line and, therefore, that the heated driveway in its entirety formed part of the Property. This assumption was lent further credence by the inclusion of the heated driveway as a feature of the Property in the property feature sheet contained in the listing. You have advised us today that the Fence has been moved by the owners of the Cornish lands onto the heated driveway.

The heated driveway forms a fixture of the Property. Your client, in Schedule “A” to the Purchase Agreement, represents and warrants that the fixtures will be free from all encumbrances on completion. Because part of the allegedly driveway [sic] encroaches onto the Cornish lands, our clients would not be obtaining title to the entire driveway and a title free of encumbrance.

Our clients are not obliged, and are extremely reluctant, to insert themselves into the middle of potential litigation between Dr. Himidan and the owners of the Cornish Lands.

The letter went to request that the encroachment dispute be resolved before the closing date.

[19] On May 15, 2017, counsel for the plaintiff wrote to counsel for the Moore purchasers advising them that it was the plaintiff’s position that the defendants had moved the fence unlawfully and that she was seeking an injunction to have it moved back. She took the position that the purchasers were obliged to close the transaction. The same day, counsel for the purchasers responded and stated:

Given the uncertainty that this ongoing litigation poses, your client was not in a position to deliver the Property’s fixtures free of all encumbrances, and accordingly was not ready, willing and able to close on this transaction. Further, our clients are not prepared, nor are they obligated, to insert themselves into the litigation dispute between your client and her neighbour.

[20] The plaintiff had agreed to purchase a new home, which was she was unable to finance because of the Moore purchasers’ refusal to close. She eventually sold the Moore property in January 2018 for $145,000 less than the Moore purchasers had agreed to pay.[^1]

II. ANALYSIS

A. Overview

[21] The plaintiff initially sued the defendants for a declaration that she owned or had an interest in the disputed parcel of land as well as damages for nuisance, trespass, defamation and inducing breach of contract. The plaintiff has abandoned her claim for defamation and no longer seeks a declaration because she no longer owns the property. However, as will be seen, her possessory interest or lack thereof in the disputed parcel remains relevant.

[22] The defendants have moved for summary judgment with respect to the plaintiff’s remaining claims. The approach the court must take on a motion for summary judgment was set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The summary judgment rule should be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims. The court must determine whether there is a genuine issue requiring a trial based only on the evidence presented. If there is no genuine issue, then the motion shall be granted. Where there is a genuine issue, the motion judge should consider whether the need for a trial can be avoided by relying on the fact finding powers in Rule 20.04(2.1), namely:

Weighing the evidence;
Evaluating the credibility of a deponent; and
Drawing any reasonable inference from the evidence.

These powers can only be exercised where doing so would not be against the interests of justice, that is, where “they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.

[23] To succeed on their motion for summary judgment, with respect to each of the plaintiff’s claims, the defendant must establish that (1) no trial is required as the record now before the court is sufficient to find the facts necessary to determine the issues; and (2) those issues should be resolved in the defendants’ favour.

B. Inducing a Breach of Contract

(i) The Elements of the Tort

[24] As explained in Correia v. Canac Kitchens, 2008 ONCA 506, 91 O.R. (3d) 353, at para. 99, the tort of inducing a breach of contract has four elements:

(1) The defendant must have knowledge of the contract between the plaintiff and another party;

(2) the defendant must have intended to procure a breach of the contract;

(3) the defendant’s conduct must have caused the other party to breach the contract; and

(4) the plaintiff must have suffered damages due to the breach.

The defendants submit that the evidence on the summary judgment motion establishes that the second and third element have not been proven.

(ii) Intention to Procure a Breach

[25] The defendants take the position that they did not intend to procure a breach by moving the fence. Their only intention was to defend their property rights and they wanted to resolve the dispute before the plaintiff sold her house. They rely on statements to that effect made by Mr. Fazlollahi in his affidavit. In response, the plaintiff submits that evidence of the defendants’ intention can be inferred from the circumstances. She relies on Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 81 O.R. (3d) 431, at para. 30, where the Court adopted the following from J.G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at p. 761:

Merely that the breach was a natural consequence of his conduct is not sufficient: he must have intended it. Not that he need have actually known the precise terms of it or that his object could be accomplished only through its breach. If -- turning a blind eye -- he went about it regardless of whether it would involve a breach, he will be treated just as if he had knowingly procured it. Indifference is equated with intent.

See also Husky Injection Molding Systems Ltd. v. Schad, 2016 ONSC 2297, at paras. 314-317.

[26] The factual issue of whether the defendants intended to procure a breach of the plaintiff’s contract with the Moore purchasers is not one which I am able to determine on this record. While Mr. Fazlollahi has made a bald assertion denying such an intention, it will rarely be the case that a defendant admits intending to procure a breach. In most cases, the intention will have to be inferred from the circumstances. In this case, the defendants moved the fence in circumstances where they knew that the closing was imminent. Mr. Fazlollahi had previously threatened to obtain a certificate of pending litigation which he told the plaintiff would “prevent you from closing your deal”. These circumstances could support an inference that the defendants were, at the least, indifferent to whether their conduct would procure a breach. To be clear, I am not finding that Mr. Fazlollahi’s denial of such an intention is untrue. Rather, I am simply unable to make the requisite findings of credibility on this record.

(iii) Causation

[27] The defendants also submit that it cannot be established that their conduct caused the new purchasers to breach the contract. They rely on the letter from the purchasers’ lawyer, who stated that his clients would not close the deal because the plaintiff was unable to “deliver the Property’s fixtures free of all encumbrances” and were unwilling to “insert themselves into the litigation dispute”. The defendants submit that it was these reasons, and not the defendants’ act of moving the fence, that caused the purchasers not to close.

[28] The issue with respect to this element of the tort is whether the defendant’s acts had a “sufficient causal connection” to the breach of the contract: OBG Limited v. Allan, [2007] UKHL 21, at para. 36. In this case, the purchasers were aware of the property line dispute by April 21, 2015 at the latest and had been told by Ms. Rezaei in late April that she intended to move the fence to the property line. Despite being aware of this, the purchasers gave no indication of any intention to refuse to close the transaction. It was only on May 15, 2015, immediately after the fence was moved, that they did so.

[29] While counsel for the defendants is correct that the letter from the purchasers’ lawyer indicated that the basis for refusing to close was the inability by the plaintiff to deliver the property free from encumbrances, I do not agree that this is dispositive of the issue. In my view, counsel has confused the purchasers’ reasons for refusing to close with their legal justification for the refusal. The plaintiff’s inability to deliver the property free of encumbrances may have justified the purchasers’ refusal to close, but they did not seek to rely on that justification until the defendants moved the fence. In this regard, I note that the claim made by the purchasers through their lawyer that they “made the reasonable assumption that the fence … marked the property line” is inconsistent with the evidence that they knew that the defendants intended to move the fence to where they believed the property line to be. In these circumstances, there is in my view a “sufficient causal connection” to satisfy this element of the tort, at least based on the record now before the court.

C. The Plaintiff’s Claim of Adverse Possession or For a Prescriptive Easement

(i) The Relevance of the Issue

[30] As noted earlier, the plaintiff has abandoned her claim of adverse possession. However, her claim remains relevant because even if the defendants had induced the breach of the agreement, it would be open to them to show that they acted with legal justification: Century 21 Canada Ltd. Partnership v. Rogers Communications Inc., 2011 BCSC 1196, 338 D.L.R. (4th) 32, at para. 345. In this case, the legal justification for moving the fence would be that the defendants owned the disputed parcel and were attempting to stop the plaintiff’s encroachment. Whether such a justification exists will depend on whether the plaintiff had any possessory right with respect to the disputed parcel. She claims that she did, either through the doctrine of adverse possession or because of a prescriptive easement.

(ii) The Elements of the Claims

[31] Adverse possession requires actual possession with the intentional and actual exclusion of the true owner for a period of 10 years: McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 33 O.A.C. 381, at para. 9. The establishment of a prescriptive easement has several elements, including the establishment of use of the land in question that is continuous, uninterrupted, open and peaceful and without permission for a period of 20 years: Bailey v. Barbour, 2016 ONCA 98, 66 R.P.R. (5th) 173, at paras. 56-60. With respect to either type of claim, because of s. 51(1) of the Land Titles Act, R.S.O. 1990, c. L.5, the relevant period of time must be prior to any conversion of the property to the land titles system, which in this case took place in 2002: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 189, aff’d without reference to this point sub nom. Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

(iii) Evidence of the Historical Use of the Disputed Parcel

[32] The evidence respecting the historical use of the disputed parcel of land by owners of the Moore property is confusing. The 1987 survey, the accuracy of which is not in dispute, shows that the 1987 fence began along the property line on the western portion of the property but ended north of the property line on the eastern end of the property, such that there was a small triangle of land south of the fence. The 2017 survey shows that the 2017 fence was one and a half to two feet north of the property line, and therefore in a different location than the 1987 fence.

[33] While it is clear that the fence was moved at some time after 1987, the remaining evidence is unclear and the various witnesses contradict each other. The relevant evidence can be briefly summarized as follows:

• Frank Fiore, the contractor who had erected the 2017 fence, deposed that the plaintiff had instructed him to put it in the same place as the chain link fence and that he had done so.

• Stojan Ilic, a contractor who had done various jobs for the plaintiff, deposed that the 2017 fence was in the same location as the chain link fence, which had been in the same location since he first began working for the plaintiff in 2007.

• Bridget Hough, who used to live in the house directly south of the driveway, deposed that the fence was in the same place throughout the time she lived there, which was from 1964 to 2012.

• Edward Parker, who was Dr. Charlesworth’s friend and had her power of attorney, deposed that the 2017 fence was north of where the chain link fence had been, but that the chain link fence had been in the same location “for decades”. He had been visiting the property since the 1960s.

• Barb Gomme, who had worked as Dr. Charlesworth’s gardener from 1992 to 2016 and was also employed by the plaintiff, deposed that she believed that the 2017 fence was in the same location as the chain link fence, which had not moved during the time she worked on the properties.

• Nicole Koteff and John Zimmerman, who live in a nearby house on Moore Avenue, deposed that the chain link fence did not move between the time they first moved to the area in 2005 and 2016. According to them, the 2017 fence was north of where the chain link fence had been.

• Don Saynor, who lives in the house just south of the driveway (where Ms. Hough used to live), deposed that the 2017 fence was further north than the chain link fence, which had been in the same location since he moved to the area in 2012.

• The plaintiff deposed that the 2017 fence was in the same place as the chain link fence, which was not in the same place as the 1987 fence, the location of which was recreated by a surveyor she had hired.

• Vince Murray, who had owned the Moore property from 1995 to 2005, deposed that the chain link fence was not moved during that period.

[34] In addition, there was evidence in the form of Google Street View photographs from 2009, 2011 and 2014 which depicted the driveway and the chain link fence. Although I reviewed these carefully, I am unable to discern from them whether the chain link fence is in the same place as the 2017 fence or the 1987 fence.

(iv) Resolving the Conflicting Evidence

[35] As a matter of logic, it is clear that not all of the evidence from the various witnesses outlined above can be true. Counsel for the defendant has invited me to find as a fact that the 2017 fence is north of where the chain link fence was. He submits that I should reject the evidence of Mr. Fiore as it is not corroborated by any documentation. I am unsure as to what sort of documentation one would expect a contractor to have in these circumstances. More importantly, Mr. Fiore was very clear in his evidence that he knew that the 2017 fence was in the same location as the chain link fence because he had been instructed to build it there and because he had used the holes left by the old fence posts to position the new posts. This seems like something he would be unlikely to be mistaken about. As well, his evidence is corroborated by the evidence of Mr. Ilic, Ms. Gomme and the plaintiff, although it is contradicted by the evidence of Mr. Parker, Ms. Koteff, Mr. Zimmerman and Mr. Saynor.

[36] Based on this record, I am unable to find that the 2017 fence is in a different location than the chain link fence. If the chain link fence was not moved between 1992 and 2017 as Ms. Gomme states, then it must have been moved at some time between 1987 and 1992. If that is the case, then the plaintiff may well have a claim of adverse possession as she and her predecessors in title had made open and continuous use of the disputed parcel for at least 10 years prior to the conversion to land titles in 2002.

[37] The defendants submit that the fact that Ms. Gomme used the driveway to trim weeds on Dr. Charlesworth’s property would have the effect of defeating a claim of adverse possession. They rely on Maas v. Oakes, 2017 ONSC 5568, 87 R.P.R. (5th) 107, at para. 55, where it was held that a plaintiff must establish that there was “no use, however trivial, by others”. I note that in Bailey, the Court stated, at para. 45, that “Fairly trivial acts of dominion by an owner will usually suffice”. I am not sure that Ms. Gomme’s trimming of the weeds is an “act of dominion” and, if it is, whether it is sufficient to defeat a claim of adverse possession, given that the owners of the Cornish property have a right of way over the driveway. This may depend on whether Ms. Gomme used the driveway to trim the weeds on Dr. Charlesworth’s instructions or with her knowledge. I am unable to determine this issue on this record.

[38] As well, there is conflicting evidence in the record as to what use was made of the driveway by the plaintiff. The plaintiff deposed that she parked her vehicle on the driveway and in the garage and permitted guests and others to do so. The defendants and other witnesses on whom they rely deny that anyone parked on the driveway.

[39] On a motion for summary judgment, the ultimate issue is whether the procedure is fair in that it gives the court confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute: Hryniak, at para. 50. For the reasons I have explained, I have no such confidence in this case.

D. Trespass and Nuisance

[40] These claims also depend on whether the plaintiff had possessory rights with respect to the disputed parcel of land. For the reasons outlined earlier, I am unable to make the necessary findings of fact to determine this issue.

III. DISPOSITION

[41] For the foregoing reasons, the motion for summary judgment is dismissed. I have considered whether this is an appropriate case to exercise the power in Rule 20.04(2.2.) and direct that oral evidence be heard. In my view, this is not an appropriate case for the exercise of that power. I draw that conclusion for two reasons: First, this case involves a large number of witnesses: Hryniak, at para. 62. Second, if the issues raised on this motion are not resolved in the defendant’s favour after hearing oral evidence, further evidence would have to be heard on the issue of whether the purchasers breached their agreement with the plaintiff.

[42] While the Supreme Court of Canada recommended in Hryniak, at para. 78, that a judge who dismisses a motion for summary judgment should seize him or herself of the trial, in my view there would be no benefit to my doing so in this case. I have made no findings of fact on any central issues and the motion was brought in the early stages of the action: Huang v. Mai, 2014 ONSC 1156, 119 O.R. (3d) 117, at para. 52; Kerwin v. Manulife Financial, 2017 ONSC 7166, at para. 43.

[43] If the parties are unable to agree on costs, the plaintiff may file written submissions of no more than three pages excluding a costs outline within 10 days of the release of these reasons, and the defendant may file written submissions of the same length within 10 days of receiving the plaintiff’s submissions.

Schreck J.

Date: June 6, 2018.