Court File and Parties

NEWMARKET COURT FILE NO.: CV-18-00136979-00 DATE: 20180917 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Seyed Hossein Hessami Booshehri Plaintiff/Moving Party – and – Alvart Simovonian Defendant/Respondent

Counsel: S. Juzkiw, for the Plaintiff/Moving Party F. Heald and A. Simovanian, for the Defendant/Respondent

HEARD: August 30, 2018

DECISION ON INTERIM INJUNCTION

SUTHERLAND J.:

Introduction

[1] On August 15, 2018, DiTomaso J. heard the plaintiff’s ex parte motion for a temporary injunction arising out of a well dispute. DiTomaso J. granted a temporary injunction in favour of the plaintiff whereby the defendant was prevented from restricting access and use of the water well or otherwise obstructing the defendant from freely utilizing and accessing the water well situated on the plaintiff’s property (the Order).

[2] The temporary injunction was to remain in full force and effect until this matter was returned for a hearing on August 30, 2018.

[3] The defendant brought a cross-motion seeking:

(a) An Order prohibiting the plaintiff from entering onto the defendant’s property; (b) An Order declaring that the plaintiff does not have the right of easement in relation to the well water which is located on the defendant’s property; (c) An order setting aside the Order.

[4] I have heard submission of the parties. The defendant requested that until my reasons are released, the Order be stayed. I declined to give that stay. The Order remains in full force and effect until my decision.

[5] For reasons below, I order that the temporary injunction, as set out in the endorsement of DiTomaso J. dated August 15, 2018, does not continue and is hereby terminated. I make no finding on whether or not the plaintiff is entitled to an easement.

Background

[6] On November 30, 2018, the plaintiff purchased lot 21 (Lot 21) and lot 15 (Lot 15) Corners Avenue, Georgina, Ontario. Both lots are directly adjacent to each other.

[7] Lot 15, which the plaintiff owns, has a house situated on it. Lot 21 is vacant land. Lot 21 has a water well beneath the ground. The water supplied by the water well solely supplies water to Lot 21.

[8] On August 31, 2017, the plaintiff sold Lot 21 to the defendant. For some months after the sale, the defendant did not object and the plaintiff was allowed to access the property and use the well for water. In the Agreement of Purchase and Sale there was no mention of the well upon the defendant’s property.

[9] The defendant acknowledges that he knew the well existed on the North-West corner of the property and that the plaintiff used the well as their water source.

[10] On or about October 15, 2017, the defendant sent a Well Sharing Agreement (the Agreement) to the plaintiff. The terms of the Agreement included:

(a) That the well is the exclusive property of the defendant. (b) The plaintiff is not permitted to enter the property of the defendant without expressed written or oral permission to do so. (c) The defendant is permitting the defendant to use the well temporarily. (d) The well agreement can be terminated by the defendant at any time or when the defendant “puts the property up for sale.”

[11] On December 9, 2017, the plaintiff wrote to the defendant reminding him that the property was subject to an easement and that the well situated on Lot 21 was the water supply to Lot 15, since Lot 15 was the only one that had a house.

[12] The plaintiff did not agree to the terms of the Agreement. Communications between the parties could not resolve their dispute.

[13] The defendant cut the electrical power cable feeding electricity to the water well. The plaintiffs no longer had water being supplied to the Lot 15. The plaintiff deposes that the defendant cut the electrical power cable sometime in or around July 2018. The plaintiff discovered that the water well was not working in July 2018 when he inspected the well in anticipation of the tenant taking occupancy.

[14] The defendant says she gave the plaintiff thirteen days’ notice of her intention to cut the power to the well and did so in December 2017.

[15] The house situated on Lot 15 is not occupied. The plaintiff indicates that he has rented the house in June 2018 and that the tenant takes occupancy on September 13, 2018.

[16] The plaintiff discovered that the water well was not working in July 2018 when he inspected the well in anticipation of the tenant taking occupancy. On December 9, 2017, the plaintiff wrote to the defendant reminding him that the property was subject to an easement and that the well situated on Lot 21 was the water supply to Lot 15, since Lot 15 was the only one that had a house.

[17] The plaintiff deposes that he hired a water purity expert who confirmed that the water is usable and serviceable but, to improve the quality of the water, UV filters systems can be used to eliminate bacteria, and other filters used to soften the water.

Position of the Parties

[18] The plaintiff submits that the Order should continue. The defendant knew prior to purchasing Lot 21 that a well was situated on the property and that the well provided water to Lot 15. All the water connections leading from the well went to Lot 15. Lot 21 was, and still is, vacant property. A well has been on Lot 21 since 1964. It is not material, for this motion, upon which date the well, presently in existence, was built; be it 1964, 1976, or 1982. The plaintiff has a tenant moving into the home on Lot 15 on September 13, 2018. The tenant requires water. The defendant would suffer no harm and the balance of convenience favours the plaintiff. The Order should continue until there is a trial of the claim of the plaintiff.

[19] The defendant takes the position that the well is situated on her property. It is her well. She has legal obligations to keep the well in good working order and to test the well water to confirm that the water being used is safe and not contaminated. The defendant is obligated in law to pay for the expense to upkeep the well. The defendant has potential legal liability for the quality of the water being produced from the well. The defendant has suffered irreparable harm. Further, the defendant argues that the plaintiff has no easement in law at all. The Order should be stayed, and a declaration given that the plaintiff is not permitted to enter the defendant’s property and has no claim for an easement.

Legal Principles

[20] I first indicate that neither the plaintiff nor the defendant brought a summary judgment motion. The plaintiff seeks a continuation of the Order and the defendant relies on Rule 37 of the Rules of Civil Procedure [^1] for a stay and the declaration, as requested.

[21] The leading cases on temporary or final injunctions are RJR MacDonald Inc. v. Canada (Attorney General) [^2] and R. v. Canadian Broadcasting Corp. [^3] (R. v. CBC).

[22] The test to grant an injunction as set out in RJR MacDonald is well known. These criteria that the party requesting an injunction must demonstrate are:

(a) From a preliminary assessment of the merits of the case, there is a serious question to be tried; (b) Irreparable harm will result if the relief is not granted; and (c) Which of the parties would suffer greater harm from the granting or refusing of the injunction pending a decision on the merits. [^4]

[23] The test in RJR MacDonald was slightly modified by the Supreme Court of Canada in R. v. CBC. In R. v. CBC the Court indicated:

The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice. [^5]

The party seeking the injunction would, unless the injunction is granted, suffer irreparable harm that is not susceptible or would be difficult to be compensated in damages.

The party seeking the inunction “must show that the balance of convenience favours granting the injunction.” [^6]

[24] The Court, in R. v. CBC, emphasized that the burden upon the party seeking the injunction is to show a case of “such merit that it is very likely to succeed at trial.” The Court defined the meaning of “very likely to succeed at trial” in stating: “Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.” [^7]

[25] I will now proceed with the application of the tests to the circumstances of this case.

Strong Prima Facie Case

[26] At the hearing of the motions, the plaintiff had not issued an originating proceeding. [^8]

[27] From the review of the material filed, and the issued Statement of Claim, it seems that the plaintiff seeks an easement onto the defendant’s property to have access to the well. The specifics of that access are not detailed. There were no cross-examinations. Is the access simply to use the well? Is it the plaintiff’s intention to be responsible for the maintenance and functioning of the well? Is it the plaintiff’s intention to upgrade the well with a filtration system and be responsible for that cost? The best the Court can ascertain in the material filed and the Statement of Claim, is that the plaintiff seeks an easement and that the defendant pay to maintain and be responsible for the quality of the water.

[28] The plaintiff contends that he has an easement based on implied easement of accommodation and easement from the intentions of the parties in the sale transaction.

Implied Easement of Accommodation

[29] In Dobson v. Tulloch [^9], Pardu J. had to determine whether the plaintiff had an easement upon the property of the defendant. In doing so, Pardu J. reviewed the implied easement of apparent accommodations and quoted Halsbury Laws of England:

Upon the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed there will pass to the grantee all those continues and apparent accommodation afforded by the part granted which

(a) Are of such a nature that they might form the subject matter of an easement (b) Are necessary to the enjoyment of the property granted, and (c) Have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted. [^10]

[30] In addition, in Canada Lands Co. CLC Ltd. v. Trizechahn Office Properties Ltd. [^11], Marshall J. of the Alberta Queen’s Bench, reviewed the law of implied easement of apparent accommodation. Marshall J. summarized the law by quoting a decision [^12] of Paperny J. stating:

The doctrine of implied grant stems from the equity in the cases. Generally speaking, when the owner of two adjoining lots conveys one of them, he implied grants to the grantee all those continuous and apparent easements that are necessary to the reasonable use of the property granted and which are, at the time of the grant, used by the owner of the entirety for the benefit of the parts granted. This doctrine is based on the principle that a person cannot derogate from his own grant. (citation omitted)

Upon the severance of a tenement by devise into several parts, not only do rights of way of strict necessity pass, but also rights of way which are necessary for the reasonable enjoyment of the part devised and which had been and were up to the time of the devise used by the owner of the entirety for the benefit of such parts. [^13] (citation omitted)

[31] The initial question for the court to answer on the evidence provided on these motions is: Has the plaintiff demonstrated a strong prima facie case that the nature of the relief requested be the subject matter of an easement?

[32] The Ontario Court of Appeal in Lohse v. Fleming [^14] upheld the findings of a trial judge that the supply of water entailed positive acts of maintenance and the expenditure of money. Where positive acts are required, absent privity of contract, no easement exists; for the easement must be the subject matter of a grant. Positive covenants “could not run with the land.” [^15]

[33] Based on the evidence before me, I cannot conclude that the plaintiff has a strong prima facie case that it will succeed at trial on the implied easement of accommodation. The plaintiff has not demonstrated the specifics of the easement requested. It appears to me that the plaintiff wishes to have the defendant take positive steps, incur the expense to maintain the well, and pay for the cost of the well and any upgrades that may be required to satisfy the legal obligation that the water from the well is safe to drink and use.

[34] When the plaintiff was asked during submissions whether he intended to drill a well on his property or take any steps with respect to the existing well, his response was no. The plaintiff contends that he has an easement that obligates the defendant to maintain the status quo that existed before the transfer of the property to the defendant. I am not convinced that, on the evidence presented on theses motions, the plaintiff has demonstrated a strong prima facie case for implied easement of accommodation.

Easement from the Common Intentions of the Parties in the Sale Transaction

[35] The Ontario Court of Appeal in Barton v. Raine [^16] reviewed the trial judge’s review of the law and agreed with the trial judge’s statement of the law. The Court of Appeal stated:

In my opinion, the learned trial judge was correct in the conclusion which he drew from the authorities referred to above, namely, that the development of the case law since Wheeldon v. Burrows has softened the rigor of the general rule set out in the case or has enlarged the scope of the exceptions to the rule. On the facts of the case at bar, I am satisfied that, although the 1952 conveyance made no mention of the a right of way, by necessary inference from the circumstances in which the conveyance was made, a common intention on the part of both the father on the one hand and the son and daughter in law on the other hand that, after the conveyance, each of them would continue to use the driveway in the same manner as, in fact, it had been used without interruption since later 1920’s.

[36] The facts of Barton are significantly different than this case. In Barton, the parties were related. The property was sold to the son by the father. The son and daughter-in-law occupied the property adjacent to the father for 10 years prior to the transfer. All parties were aware of the right of way during this period of at least 10 years. The right of way in question was easily ascertained and could have been conveyed.

[37] In this case, the easement that is presumed to be requested is not as specific and is not subject to be conveyed. The easement requested is not subject to an easement since it requires a positive act on behalf of the defendant. As already stated above, an easement cannot be granted when positive acts are required, based on common intention. In addition, the evidence provided on these motions does not persuade the Court that there was a common intention between the parties that the plaintiff have access to the well, and the defendant pay for the maintenance of the well and the water quality.

[38] Thus, I am not persuaded that a strong prima facie case has been demonstrated, such that the plaintiff has a strong likelihood that he will be successful at trial based on common intention.

Conclusion

[39] Given that I am not persuaded that the plaintiff has demonstrated either by implied easement of accommodation or implied easement of common intention that he has a prima facie case that he will be successful at trial, I need not examine the other two tests required for an interlocutory injunction.

[40] The Plaintiff, in my view, has failed on the first test.

Disposition

[41] The temporary injunction granted in the Order of DiTomaso J. dated August 15, 2018, is not continued and is hereby terminated.

[42] If the parties cannot agree on costs, then the applicant is to serve and file his written submissions for costs within thirty days from the date of this decision, and the respondent will have thirty days thereafter to serve and file his submissions. There is no right for any reply submissions. The submissions are to be no more than three pages, double spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Justice P.W. Sutherland Released: September 17, 2018

Footnotes

[^1]: RRO 1990, Reg. 194. [^2]:, [1994] 1 S.C.R. 311. [^3]: 2018 SCC 5. [^4]: supra note 2 at para 43. [^5]: supra note 3 at para 18. [^6]: Ibid at para 18. [^7]: supra note 3 at para 17. [^8]: In her factum and in oral submissions, the defendant did not take issue with the failure of the plaintiff to have issued an originating proceeding. The plaintiff issued his Statement of Claim on September 12, 2018, after the Court made an inquiry on September 10, 2018 requesting a copy of the Statement of Claim. The defendant sent an email to the Court providing written submissions that the Court did not have jurisdiction to grant an interlocutory injunction given that a proceeding was not issued. I give no consideration to those submissions. The hearing was the time to make those submissions. [^9]:, [1994] O.J. No. 531 (OCJ (GD)); affirmed (1997), 33 O.R. (3d) 800 (Ont. C.A.). [^10]: Ibid at para 29. [^11]: [2000] A.J. No.302 (Alt. Q.B.). [^12]: Condominium Plan No. 7810477 (Owners) v. Condominium Plan No.7711723 (Owners), 1997, 55 Alta. L.R. (3d) 198 (Q.B.) [^13]: supra note 10, at para 14. [^14]: 2008 ONCA 307. [^15]: Ibid at paras 13, 14 16 and 17. Also see: Nordin v. Faridi, 1996 CarswelllBC 87 (B.C.C.A.), Hanisch v. McKean, 2013 ONSC 2727. [^16]:, 29 O.R. (2d) 685, 114 D.L.R. (3d) 702; leave to appeal to SCC refused.