Court File and Parties
Court File No.: CV-16-566161 Date: 2019-02-15 Superior Court of Justice - Ontario
Re: Annette Lisbet Matuszek, Applicant And: Christopher Aishford, Respondent
Before: Nishikawa J.
Counsel: Timothy Kinnaird, for the Applicant Jeffrey Long and Leona Kung, for the Respondent
Heard: February 8, 2019
Endorsement
Factual Background
1The Applicant, Annette Matsuzek, and the Respondent, Christopher Aishford, own neighbouring properties on Kennedy Road in Toronto. Mr. Aishford’s property, 24 Kennedy Avenue, is immediately to the north of Ms. Matuszek’s property at 22 Kennedy Avenue. Between their properties is a mutual driveway, for which each is granted an easement over the other’s property.
2Beginning in 2015, Mr. Aishford renovated the house on his property, including installing cement parging and brickwork on the house. The parties’ relationship became acrimonious. The Applicant’s position was that the Respondent’s renovations resulted in various encroachments on the right of way. Specifically, Ms. Matuszek claimed that a stair walkout at the rear of Mr. Aishford’s house, air vents on the south wall, and a hydro conduit and protective metal sleeve also on the south wall all encroached on the right of way.
3Ms. Matuszek parked her vehicle, a 1985 Thunderbird (the “Thunderbird”), on the mutual driveway for a period of time, claiming that she could not drive it between the houses to the back of the properties where it had previously been parked. Mr. Aishford claimed that the Thunderbird blocked his access to the mutual driveway and prevented him from moving his garbage and recycling bins from the rear to the front of his house. Once the Thunderbird was moved, Mr. Aishford placed two large landscaping rocks on the mutual driveway in order to prevent Ms. Matuszek from parking on the mutual driveway again.
4After receiving correspondence from Ms. Matuszek’s counsel, Mr. Aishford moved the stair walkout and the air vents. The landscaping rocks were removed from the mutual driveway after the commencement of this proceeding.
5On this Application, the remaining relief sought by the Applicant is a declaration that the hydro conduit and protective metal sleeve, a U-shaped guard (the “U-guard”), covering the hydro cables encroaches upon the Applicant’s right of way, and an order compelling their removal. Ms. Matuszek claims that the hydro conduit and U-guard prevent her from using the right of way to drive the Thunderbird down the mutual driveway to park at the rear of the properties. She now parks the car at her mother’s home in Newmarket or on the street, where she has received parking tickets. While Ms. Matuszek had initially sought a permanent injunction enjoining Mr. Aishford from installing any further encroachments on the right of way, at the hearing, counsel for the Applicant advised that this relief would no longer be pursued.
Issues
6The issues raised in this Application are:
(a) Are the hydro conduit and U-guard an encroachment on the right of way?
(b) If so, do they cause substantial interference to the Applicant’s use of the right of way?
Analysis
Are the Hydro Conduit and U-Guard Encroachments?
7Where an easement is expressly created by written grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, within the context of the circumstances that existed when the easement was created: Fallowfield v. Bourgault (2003) , 68 O.R. (3d) 417 (C.A.) at para. 10. The deed to Ms. Matuszek’s property (the “Deed”) provides for “a mutual driveway 6 feet and 9 inches wide by 75 feet deep for the joint use of the owners and occupants from time to time of the lands adjoining the same on the north and on the south.” The right of way is thus a total of 81 inches or 205 centimetres wide.
8The Deed further states that “the projection of eaves, chimney breasts, window sills or down pipes of the houses immediately adjacent to the right of way shall not be considered an encroachment on the said right of way.”
9Mr. Aishford states that the hydro conduit and U-guard were installed during the renovation pursuant to the direction and approval of Toronto Hydro and the Electrical Safety Authority (“ESA”). After Ms. Matuszek commenced this proceeding, Mr. Aishford inquired with the ESA about removing the U-guard and was advised that the risk of damage to the conduit piping by motor vehicles using the mutual driveway was a safety concern, and the U-guard was required to protect it. A “Distributor Bulletin” dated April 20, 2015 issued by the ESA refers to Ontario Electrical Safety Code Rule 12-1106, which states that “[r]igid PVC conduit shall be protected where exposed to mechanical injury either during installation or afterwards.”
10In my view, while the Deed does not specifically refer to hydro conduits, cables, or protective guards, they nonetheless fall within the category of fixtures necessary to provide services to the home and thus do not constitute an encroachment. The hydro conduit and cables are necessary to provide electricity to Mr. Aishford’s house, and the U-guard was installed for safety reasons. Although there is no U-guard, Ms. Matuszek’s house also has a hydro conduit and cables on the side of her house facing the mutual driveway.
11Ms. Matuszek argues that the hydro conduit and U-guard are a matter between Mr. Aishford, his contractor, Toronto Hydro and the ESA, and should not have been installed in a manner that burdens her. The Applicant suggests that the hydro conduit could easily be moved to the front of the house or installed deeper into the wall. There is no evidence to demonstrate that this could be done with ease, or at all.
12In addition, Mr. Aishford’s evidence includes photographs that show his contractor, Dion Goncalves, measuring the distance between the U-guard and Ms. Matuszek’s house with a measuring tape. According to the measuring tape, the distance measures 82 inches. This is one inch more than the right of way granted by the Deed, and supports Mr. Aishford’s position that that there is no encroachment, since the right of way has not actually been reduced.
13Ms. Matuszek challenges Mr. Aishford’s evidence, but has not provided a measurement of the width between her house and the U-guard. Instead, Ms. Matuszek measures the alleged encroachments and adds them together to conclude that the space available for the right of way must necessarily have been reduced. Ms. Matuszek adds the width of: the parging of 0.9 inches (2.28 cm), the U-guard of 3.5 inches (8.89 cm), and an encroachment shown on the 2005 survey of 1.57 inches (4 cm). According to this calculation, the total available space would be reduced by a total of 5.97 inches (15.17 cm). The remaining space available for the right of way would thus be 75.03 inches (190.57 cm). By Ms. Matuszek’s calculations, the Thunderbird measures six feet wide. This would leave only a total of 3.03 inches (7.70 cm) or 1.51 inches (3.85 cm) on each side for the vehicle to pass through the right of way.
14This leaves a discrepancy of approximately six inches between Mr. Aishford’s measurements and Ms. Matuszek’s calculation. Mr. Aishford’s measurements and photograph demonstrate, rather conclusively, that a width of 82 inches remained after the installation of the U-guard. It is unclear from the photographs whether Ms. Matsuzek’s measurements of the brick and parging are from the same location as the U-guard. In addition, where the U-guard is installed, the wall is recessed and it is unclear to me whether Ms. Matuszek’s calculations take this recession into account.
15Ms. Matuszek’s counsel takes the position that Mr. Aishford cannot rely upon his measurement and that an adverse inference should be drawn since Mr. Aishford did not provide an affidavit from Mr. Goncalves, and failed to provide contact information for him until shortly before the hearing. I decline to make any adverse inference. Mr. Aishford’s affidavit clearly states that he and Mr. Goncalves measured the width together, and is based on his first-hand observation. It was not necessary to provide an affidavit from Mr. Goncalves to confirm this. Moreover, Mr. Aishford was cross-examined on his affidavit, but was not challenged on this measurement.
16In any event, if Mr. Aishford’s measurement was faulty in any way, it was open to Ms. Matuszek to measure the width and to provide evidence of her measurement. Since Ms. Matuszek brought the Application, she bears the burden of demonstrating that the U-guard and conduit encroach upon the right of way. This burden has not been met.
Do the Hydro Conduit and U-guard Cause Substantial Interference to the Applicant’s Use of the Right of Way?
17Since I have found that the hydro conduit and U-guard are not an encroachment, it is unnecessary to consider whether they cause substantial interference to Ms. Matuszek’s use of the right of way. In the event that I am mistaken, I will consider whether the U-guard causes substantial interference.
18An 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: Weidelich v. De Koning , 2014 ONCA 736 at para. 10. The requirement that the dominant owner prove substantial interference reflects the fact that they do not own the right of way or land upon which it runs, but only enjoy the reasonable use of that property for its granted purpose: Weidelich at para. 12.
19As noted above, the Thunderbird is 72 inches (183 cm) wide. The right of way is 81 inches (205 cm) wide, leaving nine inches (22.86 cm) of clearance, or 4.5 inches (11.43 cm) on each side. The available space was only ever that wide. Ms. Matuszek admitted that even before Mr. Aishford’s renovations, the Thunderbird had to be driven slowly and cautiously over the mutual driveway to park it at the back of the properties. This suggests that the granted purpose of the right of way did not include its use as a mutual driveway for a vehicle of that size. In addition, Ms. Matuszek was able to move her other vehicle, a Volkswagen Beetle, down the mutual driveway after the installation of the U-guard. Since the reasonable use of the right of way for its granted purpose, as a mutual driveway, remains possible, there is no substantial interference.
Conclusion
20Based on the foregoing, the Application is dismissed with costs to the Respondent.
Costs
21In the event that no agreement is reached on costs, Respondent’s counsel will submit a costs outline within seven days of the release of these reasons. The Applicant’s responding costs submissions are due within seven days of receiving the Respondent’s cost submissions. No costs submissions shall exceed five pages, including a costs outline. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.
Nishikawa J.
Date: February 15, 2019