Court File and Parties

COURT FILE NO.: 17-74899 DATE: 2018/12/19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Valérie Simard and Alexandre Noppen Applicants – and – Douglas Traynor, Gérald Gobeille and Diane Traynor Respondents

Counsel: Self-represented (for the Applicants) Patrick R. Simon for the Respondents

HEARD: September 13, 2018

reasons for decision o’bonsawin J.

Background

[1] Disputes between neighbors never end well. There is always one successful party and one unsuccessful party. Afterwards, the bitter parties must remain neighbours. This is the reason why we encourage parties to try to resolve their issues before they appear before us. I did so in this matter to no avail. These are my Reasons for Decision related to Ms. Simard and Mr. Noppen’s Application.

[2] The Applicants, Ms. Simard and Mr. Noppen, bring this Application and seek the following injunctions:

a) a mandatory injunction requiring the Respondents to immediately remove the portion of the deck built on the Property contrary to the terms of the right-of-way and restrictive covenant described in Instrument N287010 registered on the title of the Property and 52 Scrivens;

b) a mandatory injunction requiring the Respondents to immediately remove any underground posts that were installed on the Property in the Summer of 2017;

c) a mandatory injunction requiring the Respondents to immediately remove the portion of the fence that was built by the Respondents on the Property adjacent to the outer wall of the Applicants’ cold room storage in the summer/fall 2017;

d) a mandatory injunction requiring the Respondents to immediately remove the fence posts that were installed on the Property and any fence that was built on the Property;

e) a permanent injunction restraining the Respondents, their employees, agents, tenants and anyone else having knowledge of the terms of the right-of-way and restrictive covenant described in the Registered Instrument from building any structure, including a deck or a fence on the Property; and

f) a permanent injunction restraining the Respondents, their employees, agents, tenants and anyone else from removing or altering the downspout that runs down from the roof overhanging the Applicants’ cold room.

[3] Both parties live in the same building which is built in the form of a “T” (the “Property”). It houses the freeholds municipally known as 46-58 Scrivens Street.

[4] Ms. Simard and Mr. Noppen are the registered owner in joint tenancy of 52 Scrivens Street.

[5] Mr. Traynor is the registered owner of 50 Scrivens Street.

[6] Ms. Simard and Mr. Noppen’s property and the owner of 54 Scrivens’ outer wall and backyard access abuts Mr. Traynor’s property line.

[7] Ms. Traynor is Mr. Traynor’s daughter and she does not have a proprietary interest in Mr. Traynor’s property.

[8] Mr. Gobeille is Ms. Traynor’s partner. He does not have a proprietary interest in Mr. Traynor’s property.

[9] The right-of-way in question was intended to be used as a common walkway to allow some landlocked owners to have ingress and egress to Scrivens Street.

[10] Ms. Simard and Mr. Noppen believe the right-of-way was intended to provide them access to the outer wall of their foundation, which is a common element.

[11] The Respondents argue that up until October 23, 2017, the right-of-way was fully subsumed by a hedge that was planted on Ms. Simard and Mr. Noppen’s property. They had trimmed the part of the hedge on their side of the property line in order to have unencumbered access to their backyard door through the private walkway between their property and the property line. The hedge eventually completely subsumed the right-of-way on Mr. Traynor’s property to the point where the hedge was even encroaching onto his yard that was not subject to the right-of-way.

[12] Due to the overgrown hedge, in order for the owner of 54 Scrivens to access her back door, she had to trespass on Mr. Traynor’s front yard.

[13] In or around September 2014, Ms. Traynor advised Ms. Simard and Mr. Noppen that their hedge rendered the right-of-way unusable and forced the owner of 54 Scrivens’ to trespass on her father’s yard. They refused to cut down the hedge.

[14] In October 2014, Ms. Simard and Mr. Noppen wanted to build an addition to their house that would encroach upon the water and sewer easement for the benefits of properties 46, 48 and 50 Scrivens. On November 4, 2014, Ms. Simard and Mr. Noppen sought the consent of the owners of those three units, including Mr. Traynor, to encroach on his water and sewer easement. All of the three owners refused to provide their consent.

[15] Mr. Traynor suffers from dementia. His daughter is his Power of Attorney. In January 2017, Mr. Traynor moved out of 50 Scrivens and currently resides at the Perley and Rideau Veterans’ Health Centre.

[16] In May-June 2017, Mr. Gobeille made plans to install a new deck and railing at the front of Mr. Traynor’s house. According to Mr. Gobeille, he met with Ms. Simard, Mr. Nippard and the owner of 54 Scrivens to review his plans and seek their input and agreement. These plans included trimming the hedge and installing a fence on the property line.

[17] In mid-August 2017, Mr. Gobeille was advised that Ms. Simard and Mr. Noppen were not in agreement with his plans. At this stage, the poured concrete support footings and the structural support beams were in place. Mr. Noppen advised Mr. Gobeille that he had to remove the poured concrete support anchors as well as any part of the support beams that extended over the right-of-way adjacent to their cold room. The area measured approximately six feet long by four feet wide.

[18] According to Mr. Gobeille, in order to accommodate Ms. Simard and Mr. Noppen, he dismantled the support beams that extended over the right-of-way and rebuilt the deck with that portion of the patio deck which allegedly encroached on the right-of-way to be independently removable. Mr. Gobeille also built stairs to facilitate ingress and regress for the owner of 54 Scrivens.

[19] Ms. Simard and Mr. Noppen agree that Mr. Gobeille removed the above ground parts of the concrete posts. They argue that Mr. Gobeille subsequently built a permanent deck over part of Part 14 immediately adjacent to their cold room. The deck has a railing that spans from Part 14 of the right-of-way to Part 9 of 50 Scrivens which is not on the right-of-way. There is also a light and an electrical outlet on the part of the deck that is on Part 14 as well as a staircase.

[20] On October 23, 2017, Mr. Gobeille and other owners trimmed the hedge that according to him, made the right-of-way usable for its intended use, a common walkway to ingress and egress. He took out the bare stumps and installed new sod. According to Ms. Simard and Mr. Noppen, Mr. Gobeille cut entire trees and destroyed approximately 85% of the hedge.

[21] On October 25, 2017, Mr. Gobeille and his son began installing fence posts. According to Ms. Simard and Mr. Noppen, the fence posts were not centered on the property line and were on the edge of the right-of-way.

[22] On November 22, 2017, Ms. Simard sent the following email to Mr. Gobeille:

…As you know, you are not supposed to be building on the easement (deck or fence) as per the restrictive covenant on that matter that is contained in instrument #287010 that is registered on both of our titles (see paragraphs 2(c) and 9). We find your actions quite hypocritical seeing that you were vehemently opposed to us building an easement that runs through our yard, to the point you paid for a lawyer to send us a letter to that effect last winter (rather than coming to talk to us). The joke is on you for paying a lawyer to do this as we were no longer planning on going ahead with our construction project at that point. Thanks for supporting the legal industry!

[23] In addition, there are allegations of threatening behaviour by both parties against each other.

[24] Ms. Simard and Mr. Noppen take the position that the deck and fence on Part 14 make the right-of-way impossible to use and deny access to their cold room wall that is adjacent to Part 14.

Issues

[25] There are two issues in the matter and they are as follows:

a) Should this Court appoint Ms. Traynor as Mr. Traynor’s litigation guardian? b) Are Ms. Simard and Mr. Noppen entitled to the injunctive relief sought?

Analysis

Should this Court appoint Ms. Traynor as Mr. Traynor’s litigation guardian?

[26] According to Ms. Traynor, her father is incapable of providing instructions to a lawyer due to his mental incapacity. Ms. Traynor provided this Court with an Affidavit and supporting evidence pursuant to Rule 7.03(10) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requesting that she be appointed as her father’s litigation guardian pursuant to Rule 7.03(4).

[27] The relevant portions of Rule 7.03 state as follows:

Generally must be Appointed by Court

7.03(1) No person shall act as a litigation guardian for a defendant or respondent who is under disability until appointed by the court, except as provided in subrule (2), (2.1) or (3).

Motion by Person Seeking to be Litigation Guardian

7.03(4) A person who seeks to be the litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian.

Evidence on Motion to Appoint

7.03(10) A person who moves for the appointment of a litigation guardian shall provide evidence on the motion concerning,

(a) the nature of the proceeding; (b) the date on which the cause of action arose and the date on which the proceeding was commenced; (c) service on the party under disability of the originating process and the request for appointment of litigation guardian; (d) the nature and extent of the disability; (e) in the case of a minor, the minor’s birth date; (f) whether the person under disability ordinarily resides in Ontario and,

except where the proposed litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee, evidence,

(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability; (h) whether the proposed litigation guardian ordinarily resides in Ontario; (i) that the proposed litigation guardian, (i) consents to act as litigation guardian in the proceeding, (ii) is a proper person to be appointed, (iii) has no interest in the proceeding adverse to that of the party under disability, and (iv) acknowledges having been informed that he or she may incur costs that may not be recovered from another party.

[28] Ms. Traynor provided this Court with her Affidavit supporting her motion to be appointed as her father’s litigation guardian. As an exhibit to her Affidavit, Ms. Traynor has attached a letter from Mr. Traynor’s treating physician, Dr. Anne Hamilton, dated August 30, 2018. Dr. Hamilton advises that Mr. Traynor has resided at the Perley and Rideau Veterans’ Health Centre since October 19, 2017. In addition, she states that Mr. Traynor is no longer competent to make decisions regarding personal care as he is unable to understand the implications of his decisions. The Applicants did not oppose this requested relief.

[29] I find that this evidence is sufficient and appoint Ms. Traynor to act as the litigation guardian for her father, Mr. Traynor.

Are Ms. Simard and Mr. Noppen entitled to the injunctive relief sought?

[30] Before getting into the law, I must review the complicated property issues in this matter. The Property used to be owned by seven tenants-in-common. However, through an application to the Committee of Adjustments in 1984, the Property was severed into seven freeholds. The Committee of Adjustments rendered its decision subject to the condition that:

…the Applicants file with the Secretary Treasurer of the Committee agreements to be entered into by the owners of the lands which are to be binding upon the owners and all subsequent purchasers to deal with the joint use and maintenance of common elements, where applicable, such as common party walls, common structural elements such as the roof, foundations, common driveways and common landscaping.

[31] The City of Ottawa’s Planning Department appealed the decision which was dismissed by the Ontario Municipal Board on February 11, 1985. However, it altered the condition to read as follows: “such agreements to be satisfactory to the solicitor of the City of Ottawa and to be registered on title”.

[32] On May 8, 1985, Plan of Reference 5R-8967 (the “Plan”) was registered on all seven freeholds. On May 15, 1985, the owners entered into a common elements agreement (the “Agreement”). This Agreement was registered on title and is identified as Instrument Number N287010.

[33] The twenty-one parts on the Plan as divided as follows:

a) Part 3 = 46 Scrivens b) Parts 4, 5, 6, 7 and 8 = 48 Scrivens c) Parts 9, 10, 11, 12, 13 and 14 = 50 Scrivens d) Parts 15, 16, 17 and 18 = 52 Scrivens e) Part 19 = 54 Scrivens f) Part 20 = 56 Scrivens g) Part 21 = 58 Scrivens.

[34] The parties involved in 1985 agreed to create Parts 12, 13 and 14 (all on Mr. Traynor’s property) as a right-of-way described in the Agreement as a “common walkway” for the owners of 52 (Ms. Simard and Mr. Noppen’s property), and the owner of 54 Scrivens to be able to access Scrivens street without trespassing over Mr. Traynor’s property.

[35] The right-of-way, described as a “common walkway”, is the subject-matter in this Application.

[36] The parties acknowledged and agreed in 1985 at clause 2 of the Agreement, on a series of common elements for the “joint and mutual use and benefit in common of the respective owners from time to time”. The following common elements are relevant for this Application:

a) a common walkway over Parts 6, 7, 12, 13, 14 and 18 for the benefit of Parts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21; and b) a common easement for sanitary sewer and water services over parts 5, 6, 10, 13 and 16 for the benefit of parts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18.

[37] At clauses 5 and 10 of the Agreement, the parties agreed that any party who was managing and supervising the maintenance of repairs of common structural elements, such as the foundation, were entitled to exercise such easements and rights-of-way that are reasonably necessary for the purpose of doing the necessary work. These easements for the purpose of conducting repairs or improvements were contemplated separate and apart from the right-of-way serving as a common walkway.

[38] The right-of-way described in the Agreement as a common walkway and registered on Ms. Simard and Mr. Noppen’s title is described as follows:

Together with and subject to a Right-of-way over that part of Lot 270 on the west side of Scrivens Street as shown on said Registered Plan 384, designated as Parts 6, 7, 12, 13, 14 and 18 on said Plan 5R-8967 for the joint and mutual use and benefit of the owners from time to time of those parts of Lot 269 and 270 on the west side of Scrivens Street as shown on said Registered Plan 384, designated as Parts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 on said Plan 5R-8967 as a common walkway.

[39] On April 22, 1986, the solicitor for the owners of the severed properties wrote to the City of Ottawa to report an error in the Plan since it did not consider 52 and 54 Scrivens’ backyard landing and cold rooms. A new Reference Plan 5R-9658 was drafted (“Plan2”).

[40] Plan2 accurately reflects the walkable space between the location of the building at 52 Scrivens and the property line. According to the Respondents, this private walkway is actually being used by Ms. Simard and Mr. Noppen and provides full access and private walkway to their backyard door. The owner of 54 Scrivens still has her backyard access landlocked. The Respondents’ argue that this owner is the only landlocked dominant tenement that requires parts 12, 13 and 25 on Plan2 as a common walkway to access her property.

[41] The Respondents’ starting point is to argue that Ms. Simard and Mr. Noppen do not have a cause of action against Ms. Traynor and Mr. Gobeille because only Mr. Traynor is the registered owner of the servient tenement. They take the position that Ms. Simard and Mr. Noppen have not explained the nexus between Ms. Traynor and Mr. Gobeille to the Application or how this Court could enjoin them to remove a structure on a property they do not own. I agree with the Respondents that Ms. Simard and Mr. Noppen do not have a cause of action against Ms. Traynor and Mr. Gobeille, and that their cause of action is only against Mr. Traynor. Due to my decision noted earlier, I have appointed Ms. Traynor to act as the litigation guardian for her father, Mr. Traynor.

[42] I must turn to the case law. In Weidelich v. De Koning, 2014 ONCA 736, 122 O.R. (3d) 545, at paras. 10 and 12, Doherty J.A. made the following findings with regards to right-of-ways:

[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. Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), the leading English text on the topic, puts it this way, at para. 13-06:

As regards the disturbance of private rights of way, it has been laid down that whereas in a public highway any obstruction is a wrong if appreciable, in the case of a private right of way the obstruction is not actionable unless it is substantial. Again, it has been said that for the obstruction of a private way the dominant owner cannot complain unless he can prove injury; unlike the case of trespass, which gives a right of action though no damage be proved. In Hutton v Hamboro, where the obstruction of a private way was alleged, Cockburn C.J. laid down that the question was whether practically and substantially the right of way could be exercised as conveniently as before. (Emphasis added)

[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.

[43] There is insufficient evidence provided by Ms. Simard and Mr. Noppen to support their allegation that Mr. Traynor’s patio deck substantially interferes with the dominant owner’s ability to use the right-of-way for the purpose identified in the grant. The deck and posts are removable.

[44] In Underwriters’ Survey Bureau Ltd. v. Massie & Renwich Ltd., [1937] S.C.R. 265, at p. 268, the Supreme Court concluded that injunctions are equitable remedies that are not granted as of right. They can be granted at the discretion of the Court.

The law governing the court in granting or refusing an injunction is correctly stated in Ashburner’s Principles of Equity (2nd Ed. 1933), page 343:

Where the court has jurisdiction to grant an injunction, the question whether it will grant it or not is a question of discretion. It is not bound to grant an injunction merely because A threatens and intends to violate a legal right of B. But the tendency of the decisions in recent years is to limit the discretion of the court, and it may be laid down that every threatened violation of a proprietary right which, if it were committed, would entitle the party injured to an action at law, entitles him, prima facie, to an injunction, and the onus is upon the defendant of rebutting the presumption in favour of an injunction, by showing that damages will be an adequate compensation to the plaintiff for the wrong done him, or that on some other ground he is not entitled to equitable relief.

In considering whether such grounds exist for refusing this relief, the court would, unquestionably, have regard to the conduct of the plaintiffs and, especially to the fact, if such fact were established, that the application for the injunction was merely one step in the prosecution of a scheme in which the plaintiffs had combined to further some illegal object injurious to the defendant. Taking this view, I do not think that this court should be called upon at the present time to say whether or not the allegations in the above-mentioned paragraphs of the statement of defence would be sufficient to justify the court in withholding an injunction. The matter should be referred back to trial without expressing at present any opinion one way or the other as to the sufficiency of the allegations in the statement of defence.

[45] The Respondent Mr. Traynor argues that the party seeking injunctive relief must come to Court with clean hands and the Court will consider the conduct of the party seeking the injunction. There are cases where the Court has refused to grant an injunction on this principle (Strate Plan NW1837 v. Strata Plan NW2794, 2003 BCSC 1037, 12 R.P.R. (4th) 97, at para. 33, and Diversey Inc. v. Virox Holdings Inc., 2012 ONSC 6822, at para. 61). In this matter, the evidence supports that Ms. Simard and Mr. Noppen do not come to this Court with clean hands for the following reasons:

• the evidence is clear that Ms. Simard and Mr. Noppen have adopted a retaliatory approach towards the Respondent Mr. Traynor following the objection to the proposed renovation of 2014 as is evident from Ms. Simard’s email to Mr. Gobeille in November 2017; and
• Ms. Simard and Mr. Noppen seek to have the Respondent Mr. Traynor provide them access to the outer wall of their cold storage room when their access was actually restricted by their own hedge.

[46] The evidence before the Court does not warrant the granting of the equitable remedy sought by Ms. Simard and Mr. Noppen for the following reasons:

• the terms of the right-of-way do not mention anything about servicing, maintaining or repairing the outer walls or concrete foundations or other common elements of the property at 52 Scrivens;
• the right-of-way over Parts 12, 13 and 14 on Plan 5R-9658 simply define the area as a “common walkway”;
• there is no requirement in the right-of-way that the “joint and mutual use and benefit” be completely unobstructed;
• the evidence does not allow me to conclude that the use of Parts 12, 13 and 14 by the Respondent Mr. Traynor has caused any substantial interference with Ms. Simard and Mr. Noppen’s reasonable use of the common walkway;
• specifically, I am unable to conclude that the Respondent Mr. Traynor has any obligation to remove the portion of the deck, underground posts, portion of the fence or fence posts built on 50 Scrivens as they do not cause any substantial interference with Ms. Simard and Mr. Noppen’s reasonable use of the common walkway; and
• finally, the common walkway is not for the exclusive right or unobstructed access of Ms. Simard and Mr. Noppen.

Conclusion

[47] Based on my reasons above, I dismiss Ms. Simard and Mr. Noppen’s Application.

Costs

[48] The Respondents are the successful party in this case. If the parties cannot agree as to costs, they may provide my office with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The Respondents will have ten days from the date of this Order to provide their submissions and Ms. Simard and Mr. Noppen will have ten days thereafter to do the same. The Respondents will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next five days.

Justice M. O’Bonsawin Released: December 19, 2018