Court File and Parties

COURT FILE NO.: CV-17-41 DATE: 20190610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Michael Lewko, and Katherine Mary Lewko Applicants – and – Timothy Wayne Budd, and Julian Jacques Guillemot Budd Respondents

Counsel: Michael W. Carlson, for the Applicants Erroll G. Treslan, for the Respondents

HEARD: June 6, 2019

Endorsement

Conlan j.

I. Introduction

[1] There is trouble on Bay Street. Not that Bay Street.

[2] In the Township of Amabel, within the Municipality of South Bruce Peninsula, County of Bruce, there sits beautiful Bay Street, along the Lake Huron shoreline. No skyscrapers in sight.

[3] Bay Street runs, roughly, north-south. Lake Huron is to the west, with a marine allowance (public beachfront) located between the lakeside properties and Bay Street.

[4] Members of the Budd family own properties on the lake. The Lewkos own a nearby property across Bay Street, which property does not front onto the lake.

The Background

[5] Both families have been around the area for a long time. The Lewkos since September 1977. The Budds since October 1983. The current registered owners of 419 Bay Street are the Applicants, Peter Lewko and his wife Katherine Lewko (“Peter” and “Katherine”). Peter and Katherine acquired ownership in January 1996. Peter’s parents owned the property previously. The current registered owners of 422 Bay Street (which consists of three lots) are the Respondents, Timothy Budd and his nephew Julian Budd (“Timothy” and “Julian”). Julian became an owner in March 2015. Timothy has always been one of the owners ever since October 1983.

[6] In the Deed that pertains to the Lewko property, there appears the following words: “an easement for the passage of pedestrians over and upon Lot 15, Registered Plan 339, in the Township of Amabel County of Bruce, in common with others. The easement shall be for the benefit of the purchaser, his heirs, executors, administrators, successors and assigns”.

[7] Lot 15 is owned by the Budds. It is a part of 422 Bay Street. It is a fairly narrow piece of land, with Lot 14 to the north and Lot 16 to the south (both of those also owned by the Budds as part of 422 Bay Street).

[8] Thus, the picture is this. The Budds own three consecutive pieces of property on the lakefront. The middle piece, Lot 15, is the subject of the easement referred to above. There are no other encumbrances that attach to Lot 15. And the said easement applies in favour of the Lewko property specifically, and not to other neighbouring properties. Put another way, this is not a situation where other Bay Street properties owned by other non-parties have Deeds that also include the said easement.

[9] In the latter half of 2014, the Budds installed a gate that, when closed, obstructs one’s access from Bay Street to Lake Huron via Lot 15. This Court has reviewed numerous quality photographs of the gate. It is in two parts (the smaller for persons and the larger for permitted vehicles). It is constructed of fence-like boards. It stands a few feet high. It is several feet wide, with a garage structure on one side and a brick wall on the other. It has a padlock that is accessed with a key (the lock added in 2015), and there are two metal pins that go into the ground for bracing and which are located on the water side of the structure (the metal pins added in 2015). There is also a pole or post that separates the two gates, on the lakeside, that is permanently affixed to the ground and which stands about the same height as the gates themselves.

[10] The Lewkos were given keys to the gate padlock. The metal pins do not require a key; they can be lifted up from the ground manually with one’s hand in order to enter/exit the laneway.

[11] Tensions between the two families have developed since the gate was erected. Things have now boiled over. Here we are.

The Application

[12] The Lewkos, in their Amended Notice of Application, request four major things: (i) that the Budds be ordered to permanently remove or leave open the gate, and (ii) that the Budds be ordered to not block the easement in any manner, and (iii) that the Budds be ordered not to move any of the Lewkos’ personal property that is left on the public marine allowance (the beach), and (iv) an Order that the Lewkos’ guests enjoy the same rights as the Lewkos with regard to the easement.

[13] The Application is contested in all respects.

[14] Why number (ii)? Because, in addition to the gate, the Lewkos allege that the Budds have in the past blocked the laneway with snow and motor vehicles, as examples.

[15] Why number (iii)? Because the Lewkos, from time to time, leave/store personal property, including but not limited to watercraft and a picnic table, on the public beach, and they allege that the Budds have improperly moved those items in the past.

[16] Why number (iv)? Because there is a dispute between the parties as to whether the rights under the easement extend to others who are invited by the Lewkos to use the laneway, either with or without the Lewkos being present.

[17] The parties filed affidavit material and transcripts of examinations on those affidavits, as well as records, casebooks and facta. All materials on both sides were very well prepared. Most of all, I am indebted to Mr. Carlson and Mr. Treslan for their excellent submissions at Court in Owen Sound on June 6th. It is a pleasure to be able to decide a case on a relatively solid record and with the assistance of good advocacy on both sides.

II. Analysis

[18] Unfortunately for the Lewkos, without casting any negative aspersions on them personally, except for one item of relief claimed, I have determined that the Application fails and, accordingly, it is largely dismissed.

Removal of the Gate

[19] The Lewkos request, at clause 1(c) of their Amended Notice of Application, an “Order that the gates and the post that currently block ingress and egress over Lot 15, be permanently removed or left open”.

[20] That relief sought by the Lewkos is denied.

[21] I agree with Mr. Carlson that the governing law is encapsulated in the following two paragraphs, 14 and 15, taken from the binding decision of the Court of Appeal for Ontario in Weidelich v. De Koning, 2014 ONCA 736, 2014 CarswellOnt 14899:

[14] A court, when deciding whether an encroachment results in a substantial interference with the claimant’s use of the right-of-way, will have regard to the terms of the grant and the nature of the encroachment. The determination is a factual one and will turn on the specific circumstances of each case.

[15] The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc., at 257:

In short, the test, … is one of convenience and not necessity or reasonable necessity, Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?

[22] Although I am grateful to counsel for receipt of the other cases filed, all of which I have carefully reviewed, reference to them herein is unnecessary because the determination of whether something substantially interferes with a claimant’s easement is a question of fact, and the resolution of that question turns on the unique circumstances of each case.

[23] I accept the evidence adduced on behalf of the Lewkos that the gate, with its lock and metal pin system, is not as friendly for pedestrian traffic as a simple, unobstructed laneway. I accept, even further, that it is somewhat of a nuisance (my word). One has to remember to bring the key. One has to get down on the ground and reach underneath the gate to lift up the metal pins. One has to lock the gate after passing through. Undoubtedly, it would be easier and quicker to just meander through, like the situation had been before the gate was erected.

[24] Notice, however, the careful words of the test adopted by Justice Doherty on behalf of the Court in Weidelich, supra. It is not whether the right of way may be exercised as conveniently as before. That would be absurd. That would mean that the owner, for example, could not place a 2x4 piece of wood on the ground running the width of the laneway to dissuade unauthorized vehicular traffic because that would force a pedestrian to step over the piece of wood when traversing the right of way, something that was not required previously.

[25] Rather, the test is whether the right of way may be substantially and practically exercised as conveniently as before. This, quite smartly, allows for the exercise of some discretion. It builds into the analysis some common sense. It recognizes that convenience is a relative term. And it gives weight to the well-accepted legal principle that the owner has the absolute right to protect her property against crime and trespass.

[26] This gate has in no way prevented the Lewkos from accessing the beach via the laneway. Further, provided that they open the gates, even accounting for the fairly slim pole or post that separates the two gates and that is permanently affixed to the ground, the Lewkos can carry to and from the beach nearly whatever they were able to carry before (the dimensions of the opening between the garage and the brick wall are unchanged). Provided that they open the gates, the Lewkos can take as many invitees with them as they were able to bring before. They can pass through as often and at whatever times of day as they had in the past.

[27] Really, very little has changed; they now need to remember to bring a key, and they need to spend what must be thirty seconds or less each time to unlock, open, close and then re-lock the gate.

[28] In the substantial and practical sense, I am not satisfied on balance that the Lewkos can no longer exercise their right of way over Lot 15 as conveniently as before.

[29] I note, in addition, that this gate was not erected for no reason other than to spite the Lewkos across the street. I accept the evidence of the Budds that it was done for several legitimate reasons, including but not limited to the protection of the very expensive solar panels installed on the Budds’ property shortly before the gate was erected (which panels are located behind the adjacent garage, lakeside) and to keep other trespassers off of their land.

[30] It is important to remember, and worth repeating, that this easement is not for the benefit of the public at large. It is, in fact, not for anybody except a pedestrian who falls within the words of the Lewko Deed. Lot 15 is private waterfront property, subject only to the strict wording of that Deed.

[31] This Court will not order that the Budds remove or keep open the gates or remove the post on Lot 15.

Blocking the Right of Way

[32] The Lewkos request, at clause 1(d) of their Amended Notice of Application, an “Order preventing the Respondents [the Budds] from blocking the Applicants [the Lewkos] or their guests’ ingress and egress to Lot 15 in any manner”.

[33] It is unnecessary to resolve the factual dispute between the parties as to whether the Budds have, in the past, blocked the laneway by means other than the gate – for example, by deliberately blowing snow on the Bay Street side of the gate.

[34] Granting the relief requested by the Lewkos in no way prejudices the Budds, and it is in no way inconsistent with the wording of the Lewkos’ Deed, and it, hopefully, will provide some clarity to the situation for the benefit of both sides.

[35] Some re-wording of the proposed relief outlined at clause 1(d) of the Amended Notice of Application is required, however.

[36] This Court orders that the Budds shall not block (i) Peter Lewko and/or Katherine Lewko, (ii) any person residing at the Lewkos’ Bay Street property, or (iii) any person accompanying someone falling within (i) or (ii), from passing, as a pedestrian, over and upon Lot 15.

[37] The words “in any manner” found at clause 1(d) of the Amended Notice of Application are not appropriate given that the gate may be interpreted as falling within those words, and this Court has found the gate to be lawful.

Moving of the Lewkos’ Personal Property on the Public Beach

[38] The Lewkos request, at clause 1(e) of their Amended Notice of Application, an “Order preventing the Respondents [the Budds] from moving any of the Applicants’ [the Lewkos’] chattels that are stored on the Public Lands (beach)”.

[39] That relief requested by the Lewkos is denied.

[40] I reject any suggestion that the Budds have committed a criminal offence, whether the alluded to mischief or anything else, in relocating on the public beach chattels belonging to the Lewkos. Clearly, criminal intent (the mens rea component of criminal law) was absent, just as it was absent when Peter Lewko, on his own admission, moved personal property of the Budds that was on the beach in order to restore his own items to their prior place.

[41] Assuming without deciding that the Lewkos have set out the correct test for the relief sought, at paragraph 71 of the factum filed on their behalf, I am not satisfied on this evidentiary record that the first prong of that test has been met. I reproduce below the said paragraph of the factum:

The test for permanent injunctions is not that for interlocutory injunctions as set out in the familiar test in the case of RJR-MacDonald. Rather, to obtain a permanent injunction, a party is required to establish: (1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court’s discretion to grant an injunction.

[42] At paragraph 72 of their factum, it is alleged by the Lewkos that the municipality “has taken no position” as to whether they can store private chattels on the public beach. There is no direct evidence from the municipality that has been tendered. Further, the municipality is not a party to the within Application.

[43] Respectfully, that falls short of establishing that the Lewkos are lawfully permitted to store their personal property on the public beach.

[44] Besides, Peter Lewko’s own evidence, at paragraph 55 of his affidavit sworn on June 16, 2017, defeats the relief being sought. Apparently, he was told expressly by a municipal official that in leaving his personal property on the public beach he was “taking the same risk as anybody else who chooses to leave their property on Public Land within South Bruce Peninsula in that it could be stolen, damaged and/or used by anyone”.

[45] In other words, it was not a good idea to just leave stuff there unattended. Probably good advice, especially when your property does not abut the marine allowance. Why, then, would this Court grant the requested permanent injunction against the Budds? I decline to do so.

[46] Finally, it appears that the whole issue is moot. At clause II, (r) through (u) of the Amended Notice of Application, it is suggested that there has been no moving of the Lewkos’ chattels by the Budds since April 2017, more than two years ago. On thin ice, this Court is not eager to wade in to that water now.

Scope of the Easement – the Lewkos’ Guests

[47] This relief sought by the Lewkos is denied.

[48] The proposed relief is simply far too broad: “an Order that the Applicants’ guests enjoy the same rights as the Applicants for the use of Lot 15” [clause 1(f) of the Amended Notice of Application].

[49] What does that mean, “guests”? Frankly, nobody will know.

[50] In actuality, the proposal offered by the Budds is better for the Lewkos than what their Deed says. It is wider than “heirs, executors, administrators, successors and assigns”.

[51] The Lewkos should jump at the chance to have that wording proposed by the Budds, and thus, I will accede to it and order precisely as indicated above (in dealing with the issue of blocking the right of way).

[52] This Court orders that the easement referred to in the Lewkos’ Deed, 151854, dated September 22, 1977, for what is known municipally as 419 Bay Street, Township of Amabel, Town of South Bruce Peninsula, County of Bruce, shall be interpreted as permitting (i) Peter Lewko and/or Katherine Lewko, (ii) any person residing at the Lewkos’ Bay Street property, or (iii) any person accompanying someone falling within (i) or (ii), to pass, as a pedestrian, over and upon Lot 15.

[53] Should the parties collectively, or either side, wish to have the said Order filed with the Registrar, then this Court authorizes that to be done.

III. Conclusion

[54] For these reasons, besides the one item of relief, as varied by this Court, regarding the blocking of the laneway, the Application of the Lewkos, as amended, is dismissed.

[55] Costs are presumed to be in favour of the Budds.

[56] If counsel cannot resolve the issue of costs, they may file written submissions. Each submission shall be limited to three pages in length, excluding attachments. The Budds shall file theirs within thirty days of the date of this Endorsement. The Lewkos shall file theirs within fifteen days after receipt of the Budds’ submissions. Without leave of the Court, no reply is permitted.

[57] I sincerely hope that both families will experience many more years of joy on the Bay Street.

The Honourable Justice C.J. Conlan

Released: June 10, 2019