COURT FILE NO.: CV-18-608773
DATE: 20191125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Boxuan Ma
Plaintiff
– and –
Ameer Abdullah and Stella Abdullah
Defendants
Chris West, for the Plaintiff
Sidney Klotz, for the Defendant
HEARD: May 27, 2019
REASONS FOR DECISION
NISHIKAWA j.
Overview
[1] The Plaintiff, Boxuan Ma, and the Defendants, Ameer Abdullah and Stella Abdullah, are owners of neighbouring properties. Each party has a right-of-way over 3 feet and 6 inches of the neighbouring property, along the property line, from the front to the rear of their properties. The parties’ dispute pertains to this 7-foot strip of land between their properties.
[2] Mr. Ma has undertaken extensive renovations on his property. The City of Toronto requires that he provide access to the rear of his property for vehicular parking. This is a problem because the Abdullahs have extended a fence on the Right-of-Way and installed concrete slabs on their side of the Right-of-Way. Mr. Ma alleges that the extension and the slabs substantially interfere with his reasonable use of and access to the Right-of-Way because they impede vehicular access to the rear of his property.
[3] Mr. Ma brings a motion for summary judgment seeking a declaration that the Abdullahs are unreasonably and substantially interfering with the Right-of-Way. He asks for an order requiring them to remove the extension and slabs at their own cost, as well as an order prohibiting them from further interfering with the Right-of-Way. Mr. Ma seeks damages for nuisance, as well as punitive damages. Although the renovation is complete, Mr. Ma submits that he cannot sell his property because he has been unable to close the building permit on the property.
[4] Mr. and Ms. Abdullah have brought a counterclaim for damage to their property that they allege was caused by Mr. Ma’s work.
[5] The motion was first scheduled to proceed on April 24, 2019. At the Abdullahs’ request, that date was adjourned to May 27, 2019 and a timetable for the delivery of materials was ordered. After the hearing, I requested that the Abdullahs’ submit a revised factum by June 10, 2019.
[6] For the reasons that follow, I grant the declaratory relief sought by Mr. Ma, but dismiss his claim for damages for nuisance and punitive damages. I dismiss the Abdullahs’ counterclaim.
Factual Background
The Parties
[7] The Plaintiff, Boxuan Ma, owns the property at 295 Blackthorn Avenue, Toronto. Mr. Ma purchased the property on February 28, 2013.
[8] The Defendants, Ameer and Stella Abdullah, have owned the property immediately to the north of 295 Blackthorn Avenue, at 297 Blackthorn Avenue since 1997.
The Right-of-Way
[9] As noted above, 295 Blackthorn and 297 Blackthorn are adjacent lots. The Right-of-Way is a seven-foot wide strip of land between the two lots, consisting of Part 5 on Plan 64R-14124 and Part 6 on Plan 64R 14124. Part 5 is strip of land three feet six inches wide and 110 feet long along the southern portion of 295 Blackthorn. A Transfer/Deed of Land for 295 Blackthorn, instrument number CA721615 (the “295 Blackthorn Deed”) includes a right-of-way “at all times in common with others entitled thereto over, along and upon [Part 5]”. The 295 Blackthorn Deed also reserves “a right-of-way at all times for all persons entitled thereto over, along and upon the northerly three feet six inches (3’ 6”) of the hereinbefore described parcel. Now Part 6 on Plan 64R-14124.” In other words, 295 Blackthorn has a right-of-way over Part 5, and is subject to a right-of-way over Part 6.
[10] Similarly, the Transfer/Deed of Land for 297 Blackthorn, instrument number CA 494274 (the “297 Blackthorn Deed”), states as follows:
Part of Lots 194 and 195, Plan 1647 and being designated as Parts 3, 4 and 5 on Plan 64R-14124 City of York, Municipality of Metropolitan Toronto;
TOGETHER with a right of way, at all times, for all persons entitled thereto over, along and upon subject to a right of way, at all times, for all persons entitled thereto over, along and upon Part 6 on Plan 64R-14124;
AND SUBJECT to a right of way, at all times, for all persons entitled thereto over, along and upon Part 5 on Plan 64R-14124.
[11] The titles to both properties were converted to the Land Titles Act, R.S.O. 1990, c. L.5, system on August 27, 2001. There is no registered document stating that the Right-of-Way has been extinguished.
The Parties’ Dispute
[12] There is a fence between 295 Blackthorn and 297 Blackthorn, on the Right-of-Way at the rear portion of both properties. Although neither party has provided a survey or any measurements, it appears that the fence is roughly along the property line between the lots, separating each property’s back yard.
[13] The parties’ evidence about the most recent construction of the fence differs. Mr. Ma states that in June 2015, he and the Abdullahs agreed to remove an old, pre-existing fence and rebuild a new fence in the same place. Mr. Abdullah, however, states that in the summer of 2016, Mr. Ma unilaterally removed the existing fence. Mr. Abdullah complained to Mr. Ma, and they both rebuilt the fence with new wood the following day. The parties do not dispute that they shared the cost of replacing the fence.
[14] Sometime in 2017, Mr. Ma began to make renovations to 295 Blackthorn without a permit. City inspectors issued a stop work order and required that he obtain a permit for the work.
[15] Mr. Ma submitted a building permit application. In a letter dated June 6, 2017, a zoning examiner for the City advised him that certain requirements of the Zoning By-laws were not satisfied. Pursuant to Zoning By-law No. 569-2013, as amended, two parking spaces had to be provided, and Mr. Ma’s proposal had none.
[16] Mr. Ma submitted a revised landscape plan that provided for two parking spaces at the rear of 295 Blackthorn. The parking spaces can only be accessed by the Right-of-Way. On June 30, 2017, the City issued a building permit for the proposed renovations to the interior and exterior of 295 Blackthorn.
[17] In October 2017, Mr. Ma removed portions of the existing fence between the two properties to re-level the Right-of-Way, so that it could be used for vehicular access. Mr. Ma states that he consulted with Mr. Abdullah, who agreed to this work, as long as it was at Mr. Ma’s expense.
[18] Mr. Abdullah states that he had no interest in this work but agreed to level the portion of the Right-of-Way “from the front to the street” which I understand to mean from the fence to the street. Mr. Abdullah alleges that Mr. Ma entered onto his property, removed a “ramp” of two feet that went to the rear of 297 Blackthorn and removed patio stones, part of a retaining wall and soil. Mr. Abdullah alleges that Mr. Ma piled soil on the side of his house, causing some of the building to be below ground. Mr. Abdullah further alleges that Mr. Ma’s use of machinery to compact the earth caused a crack in the wall of his house.
[19] On cross-examination, Mr. Ma admitted that he removed asphalt, four feet of a retaining wall and soil from the Abdullahs’ property. Mr. Ma understood that this work was necessary to re-level the Right-of-Way for vehicular access. He also removed some concrete patio slabs that, he says, were damaged and rebuilt with interlock. Mr. Ma admits that he has installed some stones that protrude under the fence onto Mr. Abdullah’s side or the Right-of-Way.
[20] Mr. Ma alleges that in November 2017, Mr. and Ms. Abdullah extended the fence by two additional panels and installed concrete slabs that protrude into the Right-of-Way, preventing vehicles from using the Right-of-Way to access the parking spaces.
[21] City inspectors attended at 295 Blackthorn on three occasions. On the third visit, in April 2018, the inspectors informed Mr. Ma that his property failed the final exterior inspection due to the lack of vehicular access to the parking spaces. An inspection report dated August 15, 2018 states: “No access to 2 parking spots at rear of dwelling: half of driveway at front is being used as parking space for the owner of adjacent property on north side (297 Blackthorn Ave)… fence along property line is installed at rear. Advised owner to resolve these issues. No parking space, therefore, occupancy of dwelling units is not permitted.”
[22] According to Mr. Ma, all deficiencies, other than access to the parking spaces, have been rectified. Mr. and Ms. Abdullah have refused to remove the extension and the slabs and have refused to permit Mr. Ma to do so at his own expense.
[23] On September 28, 2018, Mr. Ma’s counsel sent a letter advising the Abdullahs of the existence of the Right-of-Way and demanding that they remove the fence. No response was received. On November 12, 2018, Mr. Ma commenced this proceeding.
[24] Mr. Ma has been unable to sell or use 295 Blackthorn because he has been unable to close the building permit. Mr. Ma’s spouse, Weilin Gu, entered into an agreement to purchase another property. They needed to borrow money for the down payment on the other property because they could not sell 295 Blackthorn.
[25] The parties do not dispute that each had used their respective sides of the Right-of-Way as a walkway, to take out garbage bins and other items from the rear of their properties. Mr. and Ms. Abdullah’s children used the Right-of-Way for their bicycles. It had never been used for motor vehicles. Each party occasionally used the portion of the Right-of-Way on the neighbouring property.
Issues
[26] The issues that arise in this motion for summary judgment are as follows:
(a) Was the Right-of-Way extinguished?
(b) If not, have the Abdullahs substantially interfered with the Right-of-Way?
(c) Does the principle of proprietary estoppel apply?
(d) Has Mr. Ma demonstrated a claim for nuisance?
(e) If so, to what damages is Mr. entitled?
(f) Have the Abdullahs shown a genuine issue requiring a trial on the counterclaim?
Analysis
A. Principles Applicable to Summary Judgment
[27] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[28] The Supreme Court of Canada has held that “summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims:” Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R. 87, at para. 5 [Hryniak]. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.
[29] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her, without using fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2): Hryniak, at para. 66.
[30] The court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, at paras. 26-27, aff’d 2014 ONCA 878, 247 A.C.W.S. (3d) 549, leave to appeal to SCC refused, 36341 (9 July 2015).
[31] For the reasons given below, this case does not raise the risks associated with motions for partial summary judgment, such as inconsistent findings or duplicative proceedings, that the Court of Appeal has cautioned against: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 28-29.
[32] Moreover, while there are certain evidentiary deficiencies that I refer to further below, I have determined that a motion for summary judgment affords the opportunity to make the necessary findings of fact, apply the law to those facts. Given that the Plaintiff has been unable to close the building permit for over a year and that it is in both parties’ interest to have this matter be resolved, a summary judgment motion is a more proportionate, expeditious and less expensive process to achieve a just result than going to trial.
B. The Parties’ Positions
[33] Mr. Ma submits that there is no genuine issue that the Abdullahs have substantially interfered with the Right-of-Way. He seeks an order requiring that they remove the extension and slabs. He does not seek the removal of the fence.
[34] The Abdullahs’ position is that the extension and slabs do not encroach on the Right-of-Way because that portion of the Right-of-Way, at the rear of both properties, was extinguished. They argue that there are genuine issues requiring a trial on Mr. Ma’s claim of substantial interference and on their counterclaim for damages caused by Mr. Ma’s work.
C. Was the Right of Way Extinguished?
The Applicable Principles
[35] An easement may be extinguished by: (a) operation of a statute; (b) operation of law; or (c) express or implied release: Pharand v. Jean-Louis, 1952 CanLII 114 (ON CA), [1952] O.J. No. 455, O.R. 665-673, at para. 20 (Ont. C.A.); Aragon (Wellesley) Development (Ontario) Corp. v. Piller Investments Ltd., 2018 ONSC 4607, 295 A.C.W.S. (3d) 657, at para. 157 [Aragon Development].
[36] At the hearing of the motion, the Abdullahs conceded that they would not be able to demonstrate that the Right-of-Way was expressly abandoned by a release but they argued that it was extinguished. The Abdullahs do not rely upon extinguishment by operation of a statute or by law, or by express release. The Abdullahs, however, submit that there was an abandonment by implied release.
[37] In 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951, at para. 9, Aitken J. provided the following summary of the well-settled legal principles regarding abandonment of an express right-of-way:
• Abandonment is a question of fact.
• The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it.
• The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed.
• In the absence of an actual release, non-user is essential to abandonment.
• Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment.
• When a right of way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it.
• In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right-of-way. Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances.
• All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered.
• Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement.
See also Schnieber v. Saalmans, 2016 ONSC 4708, 269 A.C.W.S. (3d) 573, at para. 35.
[38] To establish abandonment of an easement, the conduct of the dominant owner must have been such as to make it clear that they had at the relevant time a firm intention that neither they nor any successor in title should thereafter make use of the easement: Bialkowski v. Cowling, 2015 ONSC 1744, 252 A.C.W.S. (3d) 169, at para. 57.
[39] In the case of an express grant, as is the case here, easements like a right-of-way “can rarely be extinguished in any manner other than by express release, or by circumstances so cogent as to preclude a quasi-releasor from denying the release:” Fyfe v. James, 2006 CanLII 2186 (ON SC), [2006] O.J. No. 325, at para. 21 [Fyfe], quoting Anger and Honsberger, Canadian Law of Real Property, 2d ed., (Aurora, ON: 1985, Canada Law Book) at p. 973.
[40] In Aragon Development, Perell J. clarified that since an easement is a non-possessory ownership interest in land, adverse possession is insufficient to extinguish a right to an easement: 2018 ONSC 4607, at para. 157.
Application to the Facts
[41] The Abdullahs rely upon the following as evidence that the Right-of-Way was abandoned:
• Photographs showing the existence of a fence on the Right-of-Way when Mr. and Ms. Abdullah purchased 297 Blackthorn in 1997;
• Photographs showing the continued existence of a fence on the Right-of-Way;
• The fact that there have always been sheds at the rear portion of their respective properties that both encroach on the Right-of-Way;
• The Plaintiff’s conduct in taking down and then re-erecting the fence on the Right-of-Way as demonstrating that he intended to abandon the Right-of-Way; and
• The statutory declaration of Latchman Rajmoolie, the previous owner of 297 Blackthorn, (the “Rajmoolie Declaration”) dated August 28, 1997.,
The Photographs and the Sheds
[42] In support of their position that the Right-of-Way was abandoned, Mr. and Ms. Abdullah rely upon two photographs showing the existence of a fence between 295 Blackthorn and 297 Blackthorn when they purchased their property in 1997. I note that the photographs do not show where the fence begins. Accepting that the Abdullahs’ photographs were taken at the time of their purchase in 1997, at best, they show that there was a fence between the rear portion of the two properties.
[43] The Abdullahs rely also on photographs of the properties taken from the internet that show a fence between 295 Blackthorn and 297 Blackthorn. The photographs of 295 Blackthorn show that before Mr. Ma’s renovation, there was a fence between 295 Blackthorn and 297 Blackthorn beginning at approximately the edge of the house at 295 Blackthorn. The photographs also show that 295 Blackthorn had a gate between the house and fence. However, there is no indication as to when the photographs were taken.
[44] The photographs of a fence between 295 Blackthorn and 297 Blackthorn, at various times, are evidence of non-user of the Right-of-Way. Without more, however, the period and extent of non-user cannot be determined.
[45] Even if I accept that there has been a fence between the two properties continuously since 1997, there is no evidence to establish the location or length of the fence. There are no surveys showing the existence of the fence. A survey attached to the 297 Deed (the “1994 Survey”) shows the Right-of-Way but, as might be expected, does not show the existence of a fence. This is significant because Mr. and Ms. Abdullah claim that the Right-of-Way was abandoned at the rear of the properties but maintain that the Right-of-Way continues to exist at the front of the properties. The Abdullahs have not specified, however, from what point the Right-of-Way is alleged to have been abandoned.
[46] It is not clear whether the fence that existed in 1997 was the length of the current fence, including the extension. Neither party has provided any measurements, and it would not be appropriate to guess the length of the fence on the basis of the photographs. In fact, Mr. Abdullah stated on cross-examination that the current fence is not on the property line, because he used to be able to pass between the fence and his shed and is no longer able to do so. In other words, the location of the current fence is not the same as the previous one.
[47] As a result, even if there is evidence of non-user over a significant period of time, there is insufficient evidence to determine what portion of the Right-of-Way would be abandoned.
[48] Similarly, Mr. Abdullah’s evidence that both properties have had sheds at the rear of the properties that encroach on the Right-of-Way does not necessarily mean that the Right-of-Way was abandoned. The existence of the sheds is evidence of non-user of that portion of the Right-of-Way. However, even if the Right-of-Way was abandoned at the rear of the properties where the sheds are, this does not assist in determining how far down the Right-of-Way that extends. There would still be a dispute as to whether that portion of the Right-of-Way where the extension is located was abandoned.
The Re-Building of the Fence
[49] More importantly, in order to demonstrate abandonment, a party must not only show non-user, but an intention to abandon the right-of-way. Mr. and Ms. Abdullah submit that the act of rebuilding the fence demonstrates Mr. Ma’s intention to abandon the Right-of-Way.
[50] The building of a fence that prevents access to the Right-of-Way could indicate an intent not to claim or use a right-of-way. Again, the issue is the extension. If Mr. Ma did not build the extension, it cannot be evidence of his intention to abandon that portion of the Right-of-Way on which the extension is located. Mr. Ma alleges that it was the Abdullahs that built the extension. The Abdullahs, however, dispute this.
[51] It is highly unlikely that Mr. Ma built the extension, since it is precisely those two panels that impede vehicular access to the rear of his property and that he seeks to have removed. Moreover, the extension is different in appearance from the rest of the fence, which suggests that the extension was likely erected at a different time and by a different person. The fence is stained a reddish-brown colour but the extension is unstained and remains in its original colour. In addition, in the photographs, the base of the fence posts appears to be cement. The posts along the extension, however, have no cement base. If Mr. Ma built the fence, including the extension, it is likely that it would have a uniform appearance. The extension’s different appearance supports Mr. Ma’s position that the extension was not part of the fence that was installed in 2017. I find as a fact that Mr. Ma did not build the extension.
[52] Since Mr. Ma did not build the extension, the extension does not support a finding that he intended to abandon that portion of the Right-of-Way.
The Rajmoolie Declaration
[53] The Rajmoolie Declaration does not assist the Abdullahs’ claim that the Right-of-Way was abandoned. The Rajmoolie Declaration states that the “to the best of my knowledge and belief the said title deeds and papers produced and this declaration and the registered title fully and fairly disclose all facts material to the title claimed by us.” This statement thus refers to the 297 Transfer/Deed, which provides for the Right-of-Way. The Rajmoolie Declaration cannot attest to any greater title than that granted by the title documents.
[54] The Rajmoolie Declaration further states that:
[t]he buildings used in connection with the premises are situated wholly within the limits of the lands above described, and there is no dispute as to the boundaries of the said lands and that the same during the time I have been the owner thereof have been completely fenced except the street frontage. I have never heard of any claim of easement affecting the lands, either for light, drainage, or right of way or otherwise.
[55] However, the Rajmoolie Declaration references and attaches the 1994 Survey, which shows the existence of the Right-of-Way. Mr. Rajmoolie’s statement that he is unaware of any claim of easement cannot be reconciled with the 297 Blackthorn Deed and the 1994 Survey and is simply inaccurate. It is also inaccurate in stating that the buildings were situated wholly within the limits of the lands, since the shed at the rear of 297 Blackthorn encroached on the Right-of-Way. This would have been clear from the 297 Blackthorn Deed and 1994 Survey, which the Abdullahs received when they purchased 297 Blackthorn. There is no evidence that they made any further inquiries about the existence of the Right-of-Way, or whether the shed was wholly situated within their property.
[56] On cross-examination, Mr. Abdullah admitted that he had no evidence, which I interpret to be documentary evidence, that the Right-of-Way was abandoned. Moreover, despite his position that Mr. Ma’s rights over the Right-of-Way were abandoned, he does not admit to a corresponding loss of rights over the Right-of-Way on 295 Blackthorn’s side of the property line.
[57] An intention to abandon means that the person entitled to it has demonstrated “a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.” Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, at para. 50 [Remicorp]. Suspension of the exercise of a right is insufficient. An intention not to exercise a right may differ from an intention to abandon it. Remicorp, at para. 51.
[58] Inclusion of an easement in a conveyance supports the absence of an intention to abandon: Remicorp, at para. 51. In this case, the deeds for both properties reflect the existence of the Right-of-Way. When the Abdullahs purchased 297 Blackthorn in 1997, they purchased with knowledge of the existence of the Right-of-Way. They took title in the same form and extent as it was when they received title to it. They cannot now say that they should receive more: Fyfe, at para. 26. Moreover, at no time subsequent to their purchase did the Abdullahs seek to have the reference to the Right-of-Way deleted from title.
[59] Notwithstanding some evidence of non-user of the Right-of-Way, I find that the Abdullahs have failed to demonstrate that Mr. Ma abandoned the Right-of-Way.
Have the Abdullahs Substantially Interfered with the Right-of-Way?
[60] Having found that the Right-of-Way has not been extinguished through abandonment by implied release, the next question is whether the Abdullahs have substantially interfered with the Right-of-Way.
[61] In a case involving an alleged interference with an easement conferred by express grant, a court must begin by considering the nature and extent of the easement, which are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created: Przewieda v. Caughlin, 2015 ONSC 3770, 256 A.C.W.S. (3d) 226, at para. 19 [Przewieda]. The nature and extent of an easement is to be determined by the wording of the grant: Fallowfield v. Bourgault, 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417, at para. 10 [Fallowfield]. A right-of-way includes ancillary rights necessary to the use and enjoyment of the right: Fallowfield, at para. 11.
[62] Only after the extent of the easement has been determined should the court consider whether the conduct constitutes a substantial interference with the intended use and enjoyment of the easement.
[63] There is no mechanical way to determine what constitutes a substantial interference with the rights conferred by an easement. Generally, an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the ability to use the right-of-way for a purpose identified in the grant. When an easement, like a right-of way, is granted in the “widest possible” terms, the grantor generally must not derogate in any way from his grant and the effect of an encroachment has to be measured in light of the broad purpose of such a grant. In such circumstances, courts will more readily find that an encroachment substantially interferes with a potential reasonable use of the right-of-way: Przewieda, at para. 19.
[64] As noted by Doherty J.A. in Weidelich v. De Koning, 2014 ONCA 736, at paras. 10 and 12, 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.”
[65] In this case, the Right-of-Way is specifically provided for in the 295 Blackthorn Deed and the 297 Blackthorn Deed. Mr. and Ms. Abdullah submit that the Right-of-Way was only ever intended to be used as a walkway for each of the properties. However, the wording of the express grants contains no limitations on the use of the Right-of-Way. While the Right-of-Way is not wide, it is sufficient for a vehicle to pass through. Given the broad and open-ended language of the grant, I find that the Right-of-Way does not exclude it being used as a driveway between the properties.
[66] In Przewieda, Leach J. found that a fence and gate preventing vehicular transit along the right-of-way substantially interfered with full and unrestrained access to and from the beach, which the easement was intended to provide: para. 25. Leach J. acknowledged that “[p]referred purposes change over time, as does the landscape in question, and the availability of vehicles capable of traversing such terrain. If the applicants choose to travel the length of the central strip with a vehicle… they have that right:” Przewieda, at para. 25. See also Lauzon v. Lemieux, 2012 ONSC 5290, 220 A.C.W.S. (3d) 812, at para. 12 [Lauzon].
[67] I find that the extension and the slabs preclude the use of the Right-of-Way to access the rear of 295 Blackthorn by vehicle. As a result, they constitute a substantial interference with the Right-of-Way. The inspection reports from the City make clear that the plans would not have been approved without parking spaces. Once the parking spaces were created, there had to be vehicular access to them.
[68] The Abdullahs’ reliance on Khayatian v. Yu, 2008 CarswellOnt 8332, 175 A.C.W.S. (3d) 898 (S.C.J.) is of no avail. In that case, the defendant had reached an agreement with a previous owner that he would forego his use of a shed on a mutual easement and the plaintiff did not claim the easement until 10 years later. Similarly, in Costa v. Janikas, 2001 CarswellOnt 1691 (S.C.J.), there was evidence of the non-use of the right-of-way since 1937. Both neighbours had fenced in their respective properties for over fifty years. The right-of-way had been found to have been abandoned long before the conveyance to the present owner.
[69] Mr. Abdullah expressed a concern with safety since there will now be vehicles passing over the Right-of-Way. The use of the Right-of-Way for vehicular access to the parking spaces ought not to negatively impact Mr. and Ms. Abdullah’s use of the Right-of-Way. This would be no more dangerous than the use of any mutual driveway between two neighbouring properties. Needless to say, Mr. Ma’s use of the Right-of-Way must not interfere with Mr. and Ms. Abdullah’s use of the Right-of-Way: Lauzon, at para. 12.
[70] Mr. Abdullah states that the Right-of-Way cannot be used safely as a driveway because of the gas meter on the south wall of his house and a basement window well on the north wall of the Plaintiff’s house. He states that the gas meter may have to be moved as a result. The Abdullahs have provided no expert opinion or other evidence to support this view. On cross-examination, Mr. Abdullah was asked about two metal poles that surround the gas meter. He confirmed that the poles were installed by Enbridge in 2018 after he asked about the safety of the gas meter if the Right-of-Way were to be used as a driveway. This appears to address Mr. Abdullah’s concerns regarding the gas meter.
[71] The Abdullahs state that if the Right-of-Way is used as a driveway, they will no longer be able to park their car over the front portion of it. They will have to park their car in front of the front stairs leading to their house. They state that this will cause the car to protrude into the sidewalk. They have not provided measurements for the portion of their parking space or the size of their vehicle. A photograph showing a car parked in front of 297 Blackthorn does not clearly show that if the vehicle is parked directly in front of the stairs, it would block a portion of the sidewalk. In any event, the Defendants do not dispute the existence of the Right-of-Way at the front of the properties.
[72] While the fence is inconsistent with the existence of a Right-of-Way and would constitute a substantial interference, neither party seeks its removal. This may be because they both want the fence to remain. Since neither the Plaintiff nor the Defendants object to its continued existence, I make no order regarding the fence.
Proprietary Estoppel
[73] At the hearing, the Abdullahs argued that they rely upon the doctrine of proprietary estoppel. Proprietary estoppel is not pleaded in the Statement of Defence and Counterclaim. As this was not properly pleaded, the Abdullahs may not rely upon it to defeat Mr. Ma’s summary judgment motion. Moreover, other than to raise the doctrine of proprietary estoppel, the Abdullahs have not articulated how it applies to the circumstances of this case. They allege only that the doctrine applies because they expended funds on rebuilding the fence.
[74] In Clarke v. Johnson, 2014 ONCA 237, 239 A.C.W.S. (3d) 788, at para. 52, Pepall J.A. summarized the current application of the doctrine in Canada:
(a) Proprietary estoppel may form the basis of a cause of action;
(b) It is not essential that the five probanda[^1] be satisfied;
(c) Rather, three elements must be established:
(i) The owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the property;
(ii) In reliance upon this belief, the claimant acts to his detriment to the knowledge of the owner; and
(iii) The owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive;
(d) Detriment includes expenditures but countervailing benefits may also be considered;
(e) Reliance may be express or inferred; and
(f) If an equity arises, the court has broad discretion to fashion an appropriate remedy.
[75] The evidence is that Mr. and Ms. Abdullah agreed to rebuild a fence that previously existed. Indeed, their position is that there has always been a fence between 295 Blackthorn and 297 Blackthorn. Mr. Ma did not induce them to build the fence only to require them to tear it down, as the Abdullahs allege.
[76] Mr. Ma seeks only to have the extension and slabs removed. Mr. Ma’s evidence is that the Abdullahs built the extension, without his consent. I find this to be a proven fact; therefore, it cannot be said that Mr. Ma induced the Abdullahs to build the extension with the promise that they would have rights over the portion of the Right-of-Way adjacent to it. Even if it had been properly pleaded, the doctrine of proprietary estoppel has no application here.
The Doctrine of Unclean Hands
[77] The Abdullahs rely also upon the doctrine of unclean hands to argue that Mr. Ma is not entitled to equitable relief. The Abdullahs allege that Mr. Mas offered to put the extension and slabs back after 295 Blackthorn passes inspection by the City. On cross-examination, Mr. Ma admitted that he made this and various offers to the Abdullahs including a cash payment or making a parking space at the rear of their property, in order to get them to agree to remove the extension and slabs.
[78] It goes without saying that replacing the extension after it passes inspection or after 295 Blackthorn is sold to a third party would be inconsistent with the right asserted by Mr. Ma. Plaintiff. It could also mislead potential purchasers into believing that there was vehicular access to the parking spaces, only to find that the access was later impeded. However, this offer, which was never accepted, should not preclude Mr. Ma from a remedy. In any event, as discussed above, the permit cannot be closed without vehicular access. To allow the extension and slabs to remain is simply not a practicable or lawful result.
[79] Similarly, I reject as unworkable the Abdullahs’ submission that Mr. Ma should be required to revise the plan to eliminate the two parking spaces at the rear of the property. The City did not approve a plan that provided no parking. Moreover, the Abdullahs have provided no basis for ordering such relief.
To What Damages Is the Plaintiff Entitled?
[80] Once the existence of a party’s rights pursuant to an easement, like a right-of-way, are established, in order to determine if the other party’s interference with the right constitutes a nuisance, it is necessary to determine if the interference is substantial and non-trivial. Above, I have concluded that in the immediate case, the interference is substantial. It is then necessary to determine if the interference is unreasonable: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, 1 S.C.R. 594, at para. 19.
[81] The Supreme Court of Canada has defined substantial, non-trivial interference as an inconvenience that materially interferes with the property according to the standards of an ordinary, reasonable person: Tock v. St. John’s (City) Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, at para. 64. Interference is not limited to physical damage to land, but also includes interference with the convenience of the owner or occupier of the land.
[82] In determining whether the interference is substantial and unreasonable, courts have considered the following four factors: (i) the nature and locality in question; (ii) the severity of the harm; (iii) the sensitivity of the plaintiff; and (iv) the utility of the defendant’s conduct: Mandrake Management Consultants Ltd. v. Toronto Transit Commission, 1993 CanLII 9417 (ON CA), [1993] O.J. No. 995 (C.A.), at para. 20.
[83] For the reasons stated above, the Abdullahs’ interference with the Right-of-Way is substantial and also unreasonable. There is no apparent utility to their interference. Meanwhile, Mr. Ma has been prevented from closing the building permit for over a year and has been unable to use his property.
[84] Mr. Ma claims damages for a total of $106,699.62 for the following:
• Reimbursement for 50 percent of the cost of re-levelling the Right-of-Way, in the amount of $584.02;
• $31,075.00 to repair damage caused by flooding in the basement of 295 Blackthorn on February 4, 2019;
• Interest on a loan totalling $75,040.60 from February 1, 2018 to the date of the motion hearing; and
• Punitive damages of $15,000 for nuisance and emotional suffering.
[85] None of the claimed damages are recoverable.
[86] Mr. Ma agreed to pay for the re-levelling of the Right-of-Way. He cannot now seek recovery from the Abdullahs. Also, it appears that Mr. Ma did work beyond that permitted by the Abdullahs and that would require them to spend money to restore.
[87] The alleged damage caused by flooding is too remote to be recoverable and was not caused by anything done by the Abdullahs. Mr. Ma does not allege that they caused the flooding. On cross-examination, Mr. Ma stated that the cause of the flooding was a pipe that burst. Nevertheless, he argued that had he been able to close the building permit, he could have sold 295 Blackthorn, and would not have incurred the costs in connection with the flooding. This is not a reasonably foreseeable consequence of the Defendants’ refusal to remove the extension and slabs. Mr. and Ms. Abdullah could not have reasonably foreseen the flooding and cannot be responsible for any resulting damage.
[88] The interest on a loan for the purchase of another property is also too remote. In fact, it was Mr. Ma’s spouse, Weilin Gu, who is not a party to the immediate case. She entered into an agreement of purchase and sale for a property in King City, Ontario for $1,715,000.00. The sale was scheduled to close on April 1, 2017. Ms. Gu obtained a mortgage for $1,114,750.00 and additional loans from relatives of $600,325.00 at an annual interest rate of 10 percent.
[89] Mr. Ma claims that the loans were to be repaid by February 2018 from the proceeds of the sale of 295 Blackthorn. There is no documentary evidence regarding the terms of the loans other than a debt acknowledgement letter stating Mr. Ma and Ms. Gu owe 10 individuals a total of $600,325.00. Mr. Ma did not provide an agreement of purchase and sale for the other property. The only document pertaining to the sale is a land transfer tax affidavit identifying Ms. Gu and an individual named Zili Zhao as transferees.
[90] It would not be reasonably foreseeable to the Abdullahs that Mr. Ma would have incurred interest on a loan for the entire down payment of another property. There is also no evidence that Mr. Ma attempted to list or sell 295 Blackthorn and was unable to. It is unlikely that he could have sold 295 Blackthorn by February 2018 in any event, since inspections were ongoing through the spring of 2018.
[91] The Plaintiff has provided no case law to support any of the damages claimed as a result of the Abdullahs interference with the Right-of-Way, and I have found none.
The Abdullahs’ Counterclaim
[92] As noted above, the parties’ evidence differs as to what the Abdullahs agreed to when Mr. Ma approached them in 2017 about releveling the Right-of-Way and re-installing the fence. However, given the City’s requirements, Mr. Mas would have had to do this work regardless. In order for there to be vehicular access to the parking spaces, the Right-of-Way had to be levelled. This would include re-levelling the portion that is on the Defendants’ property.
[93] The Abdullahs allege that the Plaintiff removed the two-foot ramp patio tiles and a retaining wall to do this work. The Abdullahs have provided photographs that show patio tiles removed and piled in their backyard.
[94] The Abdullahs’ counterclaim consists of four paragraphs claiming damages for Mr. Ma’s removal of the concrete slabs that form part of the Abdullahs’ patio without consent, for excavating and filling a portion of the Right-of-Way without their consent and for causing their building to “prematurely disintegrate” because soil was put against it. No cause of action is alleged. At the hearing, the Abdullahs stated that they were relying on trespass and nuisance.
[95] The photographs show that after Mr. Ma had the re-levelling work done, some concrete patio slabs were lifted and some areas appear to have been dug out. The property is in an unfinished state. No photographs of the current state of the backyard of 297 Blackthorn were provided. In addition, there are no photographs of the alleged crack in the wall of the Abdullahs’ property.
[96] On the motion for summary judgment, the only evidence of the Abdullahs’ damages was the estimate of a general contractor for $4,500.00 to reinstall the ramp and retaining wall. There is no estimate for the damage to the wall.
[97] On a motion for summary judgment, a party is expected to put their best foot forward. The Abdullahs have provided minimal evidence to support their counterclaim even on the balance of probabilities. Based on the evidence, I find that the counterclaim raises no genuine issue requiring a trial and must be dismissed.
Conclusion
[98] For the foregoing reasons, I grant Mr. Ma’s motion for summary judgment and declare as follows:
(a) The Defendants are substantially interfering with the Right-of-Way;
(b) The Defendants must immediately remove the Extension and the Slabs at their own cost; and
(c) The Defendants are prohibited from further interfering with the Right-of-Way.
[99] Mr. Ma’s claims for damages are dismissed. The Abdullahs’ counterclaim is also dismissed.
Costs
[100] Mr. Ma. submitted a costs outline for a total of $11,388.19 in costs on a partial indemnity basis, including disbursements of approximately $1,288.19 and HST. Mr. Ma’s bill of costs on a full indemnity basis total $17,333.19, including HST and disbursements.
[101] The Abdullahs submitted a costs outline for a total of $27,417.90 in costs on a partial indemnity basis, including disbursements of approximately $2,682.62 and HST. The Abdullahs’ full indemnity costs were $36,557.20. These amounts include the contested adjournment.
[102] This is not an exceptional case that would justify an award of substantial indemnity costs.
[103] Pursuant to the Courts of Justice Act, s. 131(1), the court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[104] Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs.
(1) In exercising its discretion under s. 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[105] I have considered these factors, as well as the principle of proportionality in r. 1.01(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice. Aside from the claims for damages, Mr. Ma was successful on all issues raised in his claim. While the amount of damages sought by both parties was low, the proceeding was important to both parties, as the outcome would impact their property rights. The matter was of moderate complexity. While various attempts at resolution were made, they were unsuccessful and neither party made any offer in writing. The motion was adjourned because the Abdullahs had not delivered their materials, however, Mr. Ma had also failed to adhere to the timetable order.
[106] Based on the foregoing considerations, I fix total costs of the motion and action on a partial indemnity basis at $11,388.19, including disbursements and HST, payable by the Abdullahs.
Nishikawa J.
Released: November 25, 2019
COURT FILE NO.: CV-18-608773
DATE: 20191125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Boxuan Ma
Plaintiff
– and –
Ameer Abdullah and Stella Abdullah
Defendants
REASONS FOR JUDGMENT
Nishikawa J.
Released: November 25, 2019
[^1]: The five probanda are as follows: (i) the plaintiff must have made a mistake as to his legal rights; (ii) the plaintiff must have expended some money or must have done some act on the faith of his mistaken belief; (iii) the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff; (iv) the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights; and (v) the defendant, the possessor of the legal rights, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right: Clarke v. Johnson, 2014 ONCA 237, at para. 43.