Court File and Parties
COURT FILE NO.: 7015/18 DATE: 2020 03 06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Town of Oakville and Oakville Hydro Electricity Distribution Inc. Applicants – and – Michael Arthur Sullivan and Margaret Di Pede Respondents
Counsel: Scott Hamilton, for the Applicants Albert G. Formosa and Lia Boritz, for the Respondents
HEARD: March 2, 2020
REASONS FOR DECISION ON APPLICATION
Conlan J.
I. Introduction
The Application
[1] To understand who the parties are, what the subject matter is, and what relief is being sought, one may refer to paragraph 1 of the Applicants’ amended factum, reproduced below.
The Applicants, the Corporation of the Town of Oakville (“Town”) and Oakville Hydro Electricity Distribution Inc, (“Hydro”) (collectively, “Applicants”), make this application respectfully seeking the following:
a. A declaration, that the structure(s) known as the pool and surrounding deck, platform and other elements (collectively “Pool Amenities”) installed by or on behalf of Michael Arthur Sullivan and Margaret Di Pede (“Respondents”) on the westerly lands and premises municipally known as 1194 Stirling Drive, Oakville, Ontario, and bearing PIN identification 24770-0065 (LT) in the Land Titles System (“Property”) encroaches upon a Hydro easement identified as Instrument No. 339702 (“Easement”). The Town has reserved rights within the Easement;
b. An injunction or mandatory Order compelling the Respondents to remove the Pool Amenities that encroach over the Easement at their own expense, within 30 days of the date of the Order;
c. An injunction or mandatory Order compelling the Respondents to remediate any damage to the Easement caused by the installation or removal of the Pool Amenities at their own expense, within 30 days of the date of the Order;
d. Their costs of this application on a substantial indemnity basis; and,
e. Such further and other relief as counsel may advise and this Honourable Court may deem just.
[2] For purposes of consistency, in these Reasons I will adopt all of the abbreviations that are contained in the quotation above, for example, “Town” for The Corporation of the Town of Oakville.
The Hearing
[3] This Application was heard over about four hours of court time in Milton on March 2, 2020. As is customary with an application, no viva voce evidence was presented by either side.
The Facts
[4] Most of the salient facts are uncontested. The decision on the Application turns on an interpretation of the words of the Easement and the application of the law to the facts.
[5] The most important fact to outline at the outset is the wording of the Easement (see the Indenture found at pages 25-26 of the Application Record). Excluding the head and tail of that document, the entire content of it is reproduced below.
Whereas the Owners are the owners of the lands described in Schedule “A” hereto and have agreed to grant the herein mentioned easements;
Now therefore the Owners in consideration of other good and valuable consideration and the sum of Two Dollars ($2.00) now paid to it by the Town, hereby grants to the Town the right, liberty and privilege appurtenant to its undertaking as a Municipal Corporation to construct, operate, maintain, replace and repair underground sewers, drains, pipes, conduits, wires and services generally with such above ground accesses, manholes, catch basins, hydrants, service boxes and other appurtenances as it desires, at its expense and for so long as it desires, upon, across, along and under the land described in Schedule “A” hereto and for every such purpose the Town and those claiming under it shall have access to the said land at all times but reserving to the Owners the right to use the surface of the said land for any purpose which does not conflict with the Town’s rights hereunder and specifically excluding the planting of any tree and the erection of any building or structure.
The Town covenants that every time it enters upon the said land pursuant to its rights hereunder it will, as quickly as conveniently possible, after it has completed its operations thereon for the time being, restore the surface of the said land and everything which the Owners are, by the terms of this grant, permitted to maintain thereon to, as nearly as practicable, their condition immediately prior to the time when entry was made.
[6] The other material facts may be summarized briefly as follows:
(i) the Respondents are the current owners of the Property;
(ii) the Easement was registered on title on or about June 8, 1972;
(iii) the Easement is ten feet wide and runs along the Property’s western border;
(iv) on February 1, 2000, the Town sold the Easement, among other things, to Hydro, although the Town retained an interest in the Easement under the terms of the sale By-Law;
(v) the Respondents were aware of the Easement just prior to the closing of their purchase of the Property in October 2012, although they believed that it was either abandoned or never used;
(vi) underground, within the Easement, there exists currently, and at all material times there existed, a hydro wire or cable which is housed inside a conduit or a duct;
(vii) that hydro wire provides electricity to a nearby property located at 114 Wolfdale Avenue in Oakville (not owned or occupied by the Respondents);
(viii) in early 2014, the Respondents had the Pool Amenities installed;
(ix) the Pool Amenities, in whole or in part, are located within the Easement;
(x) the Pool Amenities constitute a “building” as defined in the [Ontario Building Code Act, 1992];
(xi) the Pool Amenities were installed without a building permit having been obtained, and Mr. Sullivan was responsible in pleading guilty to an infraction in that regard, and the Pool Amenities were installed without any clearance or approval, formal or informal, having been obtained from the Town or from Hydro concerning the erection of any building or structure within the Easement;
(xii) the Town and Hydro first became aware of the Pool Amenities after their installation was complete;
(xiii) there are other structures that, before the Pool Amenities were installed, were erected within the same Easement and which had been approved of in advance by the Town, including a shed, a carport, and a house;
(xiv) there were two very large trees that were located within the same Easement, before the Pool Amenities were installed; and
(xv) Mr. Sullivan has been cooperative in trying to fashion a resolution to the issue and has, in fact, offered to pay to relocate the hydro service, however, the owner(s) of 114 Wolfdale Avenue have, to date, declined to accommodate that.
The Issues
[7] There are two issues to be decided by this Court:
(i) should the Application be granted on the basis that the Respondents contravened the express terms of the Easement in having the Pool Amenities installed; and
(ii) in the alternative, should the Application be granted on the basis that the Respondents, in erecting the Pool Amenities, have substantially interfered with the rights of the Easement holders?
The Onus and the Standard of Proof
[8] On both issues, the Applicants bear the onus of proof, on a balance of probabilities.
Short Conclusion
[9] For the reasons that follow, I would answer the first question in the affirmative. The Application is granted on that basis. Although strictly unnecessary to decide, I would answer the second question in the negative; I would have dismissed the Application on that basis.
II. Analysis
[10] In an extraordinary demonstration of good representation of and advocacy for the Respondents, Mr. Formosa and Ms. Boritz have persuaded me that the evidence falls short of establishing that the Pool Amenities substantially interfere with the Easement rights of the Town and/or Hydro.
[11] But, counsel for the Respondents having won that battle, Mr. Hamilton has effectively won the war.
[12] After careful reflection, and after consideration of the purpose of the Easement and its wording as a whole, I have concluded that there is only one reasonable interpretation of the restrictions placed on the Respondents.
[13] Succinctly put, I find that they (the Respondents) were prohibited outright from erecting any building or structure within the Easement, regardless of whether that building or structure conflicted or substantially interfered with the rights of the Easement holder(s). Unfortunately, the Respondents contravened that express prohibition. Thus, the Application must be granted.
Issue 1 – Building or Structure
[14] I remind the reader that there is no dispute that the Pool Amenities constitute a “building” within the meaning of the legislation referred to above. Further, there is no argument by the Respondents that the Pool Amenities are not a “building” or “structure” as those words are used in the Indenture quoted above.
[15] Effectively, the Respondents submit that the wording of the Indenture does not prohibit the homeowner from planting/erecting a tree, building or structure within the Easement provided that the said item does not conflict with the rights of the Easement holder(s).
[16] In my view, it is unreasonable to interpret the express wording of the Indenture as suggested by counsel for the Respondents.
[17] That interpretation, with respect, makes no common sense. It would mean that the entire reference to “tree…building or structure” is superfluous. As Mr. Hamilton submitted, and I agree with his submission, if the interpretation advanced on behalf of the Respondents is correct then the phrase would have simply stopped at “which does not conflict with the Town’s rights hereunder”.
[18] It is clear to me that the said document was worded the way that it is in order to avoid the very debate that we are now embroiled in. It, by its plain words, delivered a two-part message to the homeowner: (i) do not use the surface of the Easement land for any purpose that conflicts with the Town’s rights (described above), and (ii) so that there is no confusion, do not under any circumstances plant a tree or erect a building or structure within the Easement.
[19] In hindsight, it would have been preferable for the Indenture to have stated exactly that, but I am convinced that the wording is not capable of any other reasonable interpretation.
[20] In other words, the planting of a tree or the erection of a building or structure on the Easement land is not permitted, period.
[21] There is good reason underlying that blanket prohibition – such an item is, given its anticipated size and its degree of permanence and its status as being more of a fixture than a moveable object, presumed to be in conflict with the Town’s rights.
[22] One must remember that the purpose of this particular Easement is very broad. The Town, from the outset of the Indenture’s creation, had the right to (i) go underground within the Easement for, effectively, any reason connected to municipal services and to (ii) access, above ground and within the Easement, any item related to such a service. An outright prohibition against the planting/erection of any tree, building or structure within the Easement is neatly consistent with such a broad purpose.
[23] It may seem unfair to the Respondents, but it is no answer in law or in equity to point to trees and other structures that were located on the Easement land before the Pool Amenities were installed. On our facts, I do not accept the Respondents’ submissions on the applicability of the doctrine of proprietary estoppel.
[24] I accept and am bound to follow the test for proprietary estoppel as outlined by the Court of Appeal for Ontario at paragraphs 52-53 of its decision in Clarke v. Johnson, 2014 ONCA 237, a case relied upon by the Respondents. Those paragraphs are set out below.
[52] A summary of the principles governing proprietary estoppel based on the modern approach include the following:
- proprietary estoppel may form the basis of a cause of action;
- it is not essential that the five probanda be satisfied;
- 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 his 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;
- detriment includes expenditures but countervailing benefits may also be considered;
- reliance may be express or inferred;
- if an equity arises, the court has a broad discretion to fashion an appropriate remedy.
[53] That said, one must be reminded of Oliver J.’s observation in Taylor Fashions at p. 913:
I am not at all convinced that it is desirable or possible to lay down hard and fast rules which seek to dictate, in every combination of circumstances, the considerations which will persuade the court that a departure by the acquiescing party from the previously supposed state of law or fact is so unconscionable that a court of equity will interfere. Nor, in my judgment, do the authorities support so inflexible an approach.
[25] The test has not been met on our facts. In particular, there is no evidence to suggest that Hydro had any knowledge of the other structures located within the Easement that existed before the Pool Amenities were installed, and thus, it cannot be said that Hydro induced, encouraged or allowed the Respondents to do what they did in early 2014.
[26] Second, we know for certain that the Respondents did not enquire with the Town and/or Hydro about the scope of the Easement or a building permit before installing the Pool Amenities, and thus, there is no evidence to suggest that the Respondents acted to their detriment to the knowledge of either the Town or Hydro.
[27] Third, though perhaps unforgiving to some degree, there is nothing “unconscionable” about the Town and Hydro enforcing the clear wording of the said Indenture.
[28] The proprietary estoppel argument advanced on behalf of the Respondents therefore fails, and the Application must be granted on the basis of the first issue outlined above.
Issue 2 – Substantial Interference
[29] But for the resolution of the first issue discussed above, I would have dismissed the Application.
[30] I accept and am bound to follow the test for substantial interference as adopted by the Court of Appeal for Ontario at paragraph 15 of its decision in Weidelich v. De Koning, 2014 ONCA 736, [2014] O.J. No. 5062: can the Easement be substantially and practically enjoyed or utilized by the Town and/or Hydro as conveniently as before the Pool Amenities were installed?
[31] Not any degree of inconvenience will suffice. Not some theoretical or possible inconvenience will suffice. There must be actual, substantial interference with the granted rights of the Easement holders. Weidelich, supra, at paragraph 30.
[32] The Judgment, delivered by Justice Doherty and agreed with by Justices Laskin and Epstein, has to be read very carefully. It is simply incorrect, in my opinion, to read the decision as standing for the proposition that any degree of inconvenience constitutes substantial interference. That would be absurd, I think. It would beg the question as to what is the purpose of the word “substantial”.
[33] Having read all of the cases supplied by both sides, even those going back more than one hundred years, I conclude that mere inconvenience has never been the test, and it certainly is not the test in Ontario after Weidelich, supra.
[34] For instance, take careful notice of the words used by the Court in Goodhart v. Hyett, a decision from 1883 of Justice North of the Chancery Division in the United Kingdom, a case relied upon by the Applicants. Look at how the Justice frames the penultimate question to be answered, on page 186 of the reported decision: “[t]hen the question is how far the Defendant has done anything to interfere with that right” (emphasis added). Not whether interference, even trivial, exists. Then have close regard to the conclusion reached by the Justice, at page 190 of the reported decision: “the existence of this house upon the Defendant’s property will materially affect the right of the Plaintiffs, and…therefore under these circumstances they are entitled to an injunction” (emphasis added). Not whether the house could materially affect the right of the claimant, and not whether the house will affect the right of the claimant, but whether the house will materially affect the right of the claimant.
[35] In my view, the evidence falls short of satisfying the Weidelich, supra test on a balance of probabilities, even accepting without deciding that the evidence of the Applicants’ expert, licensed professional engineer Ravi Gulati, ought to be given more weight than that of the Respondents’ experts, including former Toronto Hydro long-time employee Stanley Polak, because of alleged non-compliance by the Respondents with the requirements of [Rule 53.03 (2.1) of the Rules of Civil Procedure].
[36] Mr. Gulati’s report, located at tab 2C of the Supplementary Reply Record of the Applicants, reveals that (i) he was asked to opine on how a hydro wire found within the Easement would be repaired by Hydro or a contractor on its behalf and (ii) he was asked to opine on what, if any, issues the Pool Amenities would pose to an attempt to repair a hydro wire or to perform another required municipal or utility service underneath the Pool Amenities.
[37] With respect, Mr. Gulati’s answer to (i) above is not helpful to this Court. It is entirely speculative and without any discernible foundation except to surmise that Mr. Gulati relied to a significant extent on the evidence of Daniel Steele, Hydro’s Director of engineering and construction.
[38] Mr. Gulati’s answers to (ii) above are replete with references to “could” and are simply not concrete enough to persuade this Court that there exists substantial interference with the rights of the Town and/or Hydro as a result of the installation of the Pool Amenities. What was done “could pose problems in repairing the Hydro Wire in the easement”, according to Mr. Gulati. Delays in the restoration of any fault are “likely”, he states. The Pool Amenities “could be a hinderance in the restoration of a fault in the Hydro Wire”, in the words of Mr. Gulati. “Increased costs and repair delay could occur”, though the degree of those things “would depend”, he states.
[39] I am not criticizing Mr. Gulati. This is not about that. It is about whether his evidence helps satisfy the test, the onus of proof of which rests with the Applicants. Not really, I say.
[40] That leaves, on behalf of the Applicants, in the main, the evidence of Mr. Steele. Likewise, I conclude that it assists very little. I agree with counsel for the Respondents that Mr. Steele’s evidence is based on a significant misapprehension of the facts, albeit an innocent one. At page 18 of the Reply Record of the Applicants, paragraph 6 of Mr. Steele’s Affidavit sworn on February 7, 2019, it is clear that Mr. Steele was of the belief that the hydro wire contained within the Easement is a direct buried cable and not located inside a conduit or a duct. That, we now know from the Respondents’ evidence, specifically that of Mr. Stanton, is clearly wrong. It is not a direct buried cable. The hydro wire is, indeed, contained inside a conduit or a duct. Thus, Mr. Steele’s evidence that a simple cable replacement would be impossible is dubious. And that is directly relevant to whether the alternative method of repair or replacement being suggested by the Respondents’ experts is just as convenient as the open-cut excavation underneath the Pool Amenities method advanced by Hydro.
[41] In the end, on the totality of the evidence, I am prepared to accept that the Pool Amenities could cause some unspecified or unknown, but probably quite minor, degree of inconvenience to the Town and/or Hydro in exercising their Easement rights, however, that is not the test for substantial interference.
[42] Consequently, if substantial interference was the only issue, I would have dismissed the Application.
[43] Although strictly unnecessary to do so, in the event that the within decision is appealed from, I thought that it might be helpful to analyze this second issue.
III. Conclusion
[44] For these reasons, the Application is granted.
[45] An Order shall issue as per clauses 1(a), (b), and (c) of the Applicants’ amended factum, quoted at the commencement of these Reasons, with one change.
[46] Regarding clauses 1(b) and (c), the 30-day period requested for the Respondents to remove the Pool Amenities at their own expense and to remediate any damage to the Easement at their own expense is, in my view, unreasonably short. The Order shall provide that the deadline for those things to be done is on or before June 1, 2020.
[47] 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 Applicants shall file within thirty calendar days of the date of these Reasons. The Respondents shall file within fifteen calendar days after receipt of the Applicants’ submissions. Without leave of the Court, no reply is permitted.
[48] I thank all counsel for their assistance with this matter. It was very well presented and nicely argued on both sides.
Conlan J.