Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Seyedehzahra Delnaz Yekrangian and Elle Hariri Cameron, Applicants
AND:
Christopher Allan Boys, Kristy Anne Boys and Stefan Brogren, Respondents
BEFORE: Pollak J.
COUNSEL: Scott Lemke, for the Applicants
Jonathan Barr & Andrew M. Fortis & Amiri Dear, for the Respondents
HEARD: February 13, 2020
ENDORSEMENT
1Seyedehzahra Delnaz Yekrangian and Elle Hariri Cameron (the “Applicants”) seek the following relief on this Application:
a) “A declaration that the right-of-way (the“ROW”) described in Instrument Number CA167742 (the “174 ROW”) has been abandoned by the dominant tenement and is thereby extinguished.
b) An order that the 174 ROW be deleted from the servient tenement, identified by PIN 21298-0107 (municipally known as 174 Strachan Avenue, Toronto, ON) and from the dominant tenement, identified by PIN 21298-0105 (municipally known as 121 Massey Street, Toronto, ON).
c) A declaration that the ROW described in Instrument Number CA411669 (the “176 ROW”) has been abandoned by the dominant tenement and is thereby extinguished.
d) An order that the 176 ROW be deleted from the servient tenement, identified by PIN 21298-0337 (municipally known as 176 Strachan Avenue, Toronto, ON) and from the dominant tenement, identified by PIN 21298-0105 (municipally known as 121 Massey Street, Toronto, ON).”
2The September 28, 1905 deed of property for 121 Massey, Street, Toronto, ON (“121 Massey”) includes a ROW. The ROW was described as being across 121 Massey from its westerly property line to its easterly property line to sheds on the rear premises of the 174 and 176 Strachan Avenue. These sheds are no longer in existence.
3The ROW on the title documents for 174 and 176 Strachan Avenue establish that they are the dominant tenements, with 121 Massey being the subservient tenant.
4Christopher Boys and Kristy Boys are the owners of 174 Strachan Avenue and Stefan Brogren is the owner of 176 Strachan Avenue (the “Respondents”).
5The Respondents oppose this Application submitting that they have never abandoned the ROW and that it exists as their right in their title documents. Further, the ROW is necessary for the use and enjoyment of their properties. Without it, the Respondents cannot access the rear of their properties or renovate, repair, or landscape their properties. The ROW is not used daily but is used and required to access the rear of 176 and 174 Strachan Avenue, especially for carrying large items, which cannot be brought through their homes fronting on Strachan Avenue. If successful on this Application, the Applicants will build a three or four story house that will totally block the ROW and any rear access to Respondents’ properties. Ms. Yekrangian has admitted that the proposed development would remove all access to the ROW.
6In 2018 the Applicants applied to the City of Toronto Committee of Adjustments for a minor variance to renovate their house on 121 Massey. Their Application is for permission to add three storeys to the existing bungalow and to extend it to the north property line.
7The Respondents opposed the Applicants’ Committee of Adjustments application and filed letters of objection on the basis of the fact that the proposed development would prevent them from accessing the ROW.
8The position of the Respondents on this Application is that the ROW across 121 Massey Street, which services their properties has not been abandoned and remains in use. The Respondents deny that they have ever, whether through non-use, acquiescence or abandonment, given up their right to the use or enjoyment of the ROW, nor have they or their predecessors in title.
9The ROW is “L” shaped and approximately eight feet and one inch wide along the north portion of 121 Massey Street. Towards the east, or the rear of 121 Massey, the ROW expands to approximately eight feet and nine inches wide along its boundary with 176 Strachan. The ROW further extends across the east, or rear of 121 Massey and along its boundary with 174 Strachan.
10The ROW was narrowed when the owner of 123 Massey built a house over the property line and encroached on the ROW. Mr. Boys’ evidence is that at the time of the construction, he objected to the Ontario Municipal Board but was unaware of his specific rights regarding the ROW. Mr. Brogren testified that he was not aware of the specific nature and extent of the encroachment on the ROW by the owners of 123 Massey in 2017.
11The evidence is that at the access point to the ROW at the entrance to 121 Massey Street there is a gate which opens to allow pedestrian and vehicular access to the ROW. The gate was installed by Mr. O’Flanagan between August 2017 to July 2018 and opens fully to allow vehicles to pass through.
12There is a fence at the rear of 176 Strachan Avenue along its boundary with the 121 Massey property and the ROW. A fence was in existence when Mr. Brogren bought 176 Strachan in 2007. As the fence needed repair, he re-built in 2013 to prevent people from entering his property.
13There is also a fence built along the boundary of 174 Strachan Avenue and 121 Massey Street. The brick house on 121 Massey encroaches on the ROW as described in the title documents and prevents direct access from 174 Strachan Avenue to the ROW. This house has been present since the Boys’ purchased 174 Strachan Avenue in 2015.
14There are also a number of trees planted in the backyards of 176 Strachan and 174 Strachan Avenue by their fences, but they do not limit access to the ROW.
Preliminary Issue – Do s. 51 of the Land Titles Act R.S.O. 1990, c. L-5-Ontario and/or ss. 4 and 15 of the Real Property Limitations Act R.S.O. 1990 c. L. 15 apply? The parties agree that they do not.
The law
15The parties agree that:
The applicable principles are set out by the court in 2108133 Ontario Inc. v. Kabcan Foods Ltd. 2009 CanLii 9739.
Abandonment is a question of fact. (455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. H.C.) at para. 25).
The burden of proof is on the Applicants. (Liscombe v. Maughan (1929), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (S.C.App.Div.) at para. 28; 455645 Ontario Ltd. v. Rousseau, supra, at para. 31; Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.) at para.21).
The only way in which a ROW can be extinguished by the act of the parties interested is by release, actual or presumed. (Liscombe v. Maughan, supra, at para. 28).
In the absence of an actual release, non-user is essential to abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27; Peters v. Palmer, supra para. 22).
Non-user is not sufficient to permit a conclusion of abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27).
There must be some intention to abandon this property right. (Closs v. Ferguson (1923), 24 O.W.N. 199 (Div. Ct.); Peters v. Palmer, supra, at para. 21). The intention to abandon means that the person entitled to the ROW has knowingly, and with full appreciation of his rights, determined to abandon it. (Liscombe v. Maughan, supra; Peters v. Palmer, supra).
In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the ROW. (455645 Ontario Ltd. v. Rousseau, supra, at para. 29). Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. (Liscombe v. Maughan).
Including the express ROW 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. (Liscombe v. Maughan, supra at para. 32).
In the absence of an actual or express release, non-user is essential to abandonment.
ISSUE #1: Does the evidence establish Non-User?
16It is the submission of the Applicants that the evidence of non-use has been established. The Respondents submit the evidence does not support this finding.
17The Applicants make reference to a number of sheds described in the Deed of September 28, 1905, which were located on the rear of 176 Strachan Avenue. They submit that these sheds were referred to as a means of plotting the ROW. It is agreed that these sheds were not there by 1986 when Ms. Dulce Pavao started living at 121 Massey.
18The Applicants’ submit however, that while the purpose of the ROW is not explicitly stated in the Deed, it does state that the ROW extends from Massey Street to the west edge of the Strachan properties. In a prior description of the 121 Massey property, there is a description of a “row of sheds” along the west edge of the Strachan properties. It is the submission of the Applicants that there is a reasonable presumption that the purpose of the ROW was to access the row of sheds at the rear of the Strachan properties. As the sheds no longer exist, it is submitted that by operation of law, the ROW is extinguished as its purpose is gone. It is the submission of the Applicants that because the purpose of the easement no longer exists, such is evidence of an express intention to abandon it. I do not accept this argument as it is not based on evidence, but only on assumptions. Further, it is not consistent with the evidence of the Respondents on how the ROW is used.
19The evidence of the Applicants on this Application includes the following “surveys”:
i. An unsworn attached survey of 176 Strachan, dated July 20, 1987, stated to have been completed by Blain Martin Surveying Limited (the “176 Strachan Survey”). The 176 Strachan Survey does not show the Strachan property sheds.
ii. An unsworn attached survey of 174 Strachan, dated June 22, 1988, stated to have been completed by Tom Czerwinksi Surveying Ltd. (the “174 Strachan Survey”). The 174 Strachan Survey, also, does not show the Strachan property sheds.
iii. An unsworn and undated survey of 121 Massey (the “Undated 121 Massey Survey”) which the Applicants submit must have been prepared before the 174 Strachan Survey because it shows a ‘Metal Clad Shed’ at the rear of 174 Strachan, which is not shown in the 174 Strachan Survey. This metal clad shed shown in the Undated 121 Massey Survey may be one of the ‘sheds’ referred to in the First Deed from 1905. The Undated 121 Massey Survey shows the brick dwelling on 121 Massey.
20The authors of these surveys did not give evidence and further, no evidence on who prepared or the purpose the 174 Strachan Survey or the 176 Strachan Survey was filed. The Applicants argue that without evidence to the contrary, there is a reasonable presumption that both surveys were prepared, either for a predecessor in title of the respective properties, or a person with an interest in the property (i.e. a lender or a prospective purchaser). As a predecessor in title of each property would have had to consent to the surveyor accessing their property in order to conduct the survey, and thus, would have known that the survey was being completed.
21The Applicants further rely on the notation referring to the ROW in the survey of 176 Strachan “APPARENTLY NEVER IN EXISTENCE”. There is no evidence on the origin or reason for this notation.
22Further relying on these surveys, the Applicants also submit that the wood shed which appears to be shown on the 176 Strachan Avenue Survey of July 20, 1987, and the undated 121 Massey Survey also appears to have been on the ROW. The Applicants submit that there does appear to have been enough space to permit access to 176 Strachan Avenue. There is no evidence on whether this wood shed did completely block access to the ROW. This shed was not there when the Applicants purchased 121 Massey Street.
23Reference was also made to a teal shed which was on the ROW and removed in August 2017. The Respondents submit that presence of the different sheds, which may have existed at different times, still allowed movement around the sheds. There is no evidence that the sheds prevented the use of the ROW as they intended to use it. There is, however, evidence that Mr. Graeme Ian Briggs Hodgart (a contractor working on the Respondents’ properties), was able to use the ROW despite the existence of the sheds or any other structures or items on the ROW. There is no direct evidence before the court to prove that the ROW was impassible at any time.
24This “survey” evidence of the Applicants that I referred to is not properly introduced, unsworn and can be given very minimal weight, if any.
25In support of their claim of non-use, the Applicants also rely on the evidence of Ms. Dulce Pavao, who lived at but did not own 121 Massey from or about 1986 to 2010. Ms. Pavao stated that she only became aware of the ROW after living on the property for 4 years and after persons had inquired about using the ROW. Her evidence was that on two or three occasions, unidentified persons occupying 176 and/or 174 Strachan Avenue asked her whether they could use the ROW. She told them that the ROW was not in existence and refused them access to it.
26Ms. Pavao’s evidence is that she refused access to the ROW, but not that it was not used.
27Ms. Pavao’s evidence is also that there was no way for persons to use the ROW for a significant period of time before she moved in to 121 Massey. Her evidence is that there was a wooden shed on the property abutting the 121 Massey-176 Strachan property line, and that there was no way a person could have passed over or through this wooden shed. As a result of the encroaching house, this wooden shed completely obstructed the ROW. On her cross-examination, she admitted that:
“39Q: On what basis do you make that statement that it was no longer in existence?
A: Because there was an old, like, a 60-year old shed, wooden shed, where they’re claiming the ROW would be. And it was from the whole fence. So there was no way they could have ever come through before I was there. [Emphasis added].
- Q: Unless, of course, they went over the fence.
A: Yep.
41.Q: Right?
A: Yeah. But the shed was too old.
42.Q: What do you mean the shed was too old?
A: It was in front of the ROW. So it was too old for anyone to pass.
43.Q: Right. But it wasn’t completely blocking, though.
A: Yeah. It was completely blocking.
44.Q: I though I read that there was a 1-foot gap on each side.
A: Could have been. But I’m just saying they couldn’t – there was no ROW. No gate. No…
45.Q: In your opinion –
A: Okay. In my opinion”
28The Applicants submit Ms. Pavao’s evidence is corroborated by the 176 Strachan Survey, the 174 Strachan Survey and the Undated 121 Massey Survey. As already noted, I give no weight to the “survey” evidence as it has not been properly introduced or identified and is, in my view, unreliable.
29Ms. Pavao also admitted under Cross-examination that her belief that the ROW was no longer in existence was based on a statement from a City Councilor.
30Ms. Pavao did not give evidence on the use of the ROW before 1986 and after 2010, when she did not occupy 121 Massey. She never owned the property.
31The Respondents submit that there may be many reasons to explain some non-use of the ROW. The ROW was not for daily use. Its purpose was to provide access to the rear of the properties 174 and 176 Strachan Avenue that would not be accessible otherwise. It is submitted that the need for accessibility would only be for periods of renovations, repairs, or landscaping of the properties. That does not occur on a daily, weekly or even yearly basis. It occurs when the owners of 174 and 176 Strachan Avenue decide to do that sort of work on their respective properties and there could easily be gaps of 30-40 years where it was unnecessary for the occupants of 174 or 176 Strachan Avenue to use the ROW.
32The Respondents submit that Ms. Pavao’s evidence is not enough to support the Applicants’ allegations of non-use. I agree that such evidence does not satisfy the Applicant’s burden of proving non-use. Rather, the evidence does support a finding of “use” for a specific purpose.
ISSUE #2: Has the ROW been Abandoned by the Dominant Tenement?
The Evidence
33The Applicants emphasized that the brick house at 121 Massey is built on top of the ROW, which makes it impossible to be used by 174 Strachan. The 2017 MLS listing states the house is 51-99 years old. It was there when Ms. Pavao moved into it in 1986.
34Mr. Boys’ evidence is that he has never used the ROW.
35As mentioned above, Mr. Hodgart, a general contractor who completed work on both 176 and 174 Strachan Avenue, has testified that in transporting his building materials he reversed his flatbed truck along the ROW and lifted his building materials over the fence and used Mr. Brogren’s yard.
36His evidence is that he completed construction work on 176 Strachan Avenue in 2015. He would not have been able to complete the construction work without using the ROW, as he was required to transport large and heavy building materials including PVC drain pipes, dry-wall and bags of cement via the ROW along 121 Massey and over the fence onto the backyard of 176 Strachan Avenue. These items could not be brought onto the property by any other means. They would not fit through the house.
37Mr. Hodgart used a similar method to transport building materials to 174 Strachan Avenue in April 2015 when he built two decks for the previous owner. At that time, he reversed his truck along the ROW, and lifted construction materials over the fence onto 176 Strachan Avenue and thereafter over the fence connected to 174 Strachan Avenue.
38Mr. Brogren also testified that from July to September 2015 the ROW was in constant use by contractors renovating his home.
39The Applicants submit that Mr. Brogren’s evidence and that of the contractor is not material to the outcome of the Application. It is the position of the Applicants that the ROW was abandoned prior to Mr. Brogren’s alleged use of it in 2015. An assertion of a past property interest after it has been extinguished, does not revive it.
40The Applicants also urge this court to reject this evidence of use arguing that during the months of July to September of 2015, it was impossible to back a flatbed truck along the ROW. The Driveway Fence completely obstructed the ROW from July to September of 2015 (it was installed by Ms. Pavao’s husband in 1990 and remained in place until it was replaced by Mr. O’Flanagan in August 2017). They emphasize that there is no mention of the Driveway Fence in Mr. Hodgart’s affidavit as he only refers to the boundary fence separating 176 Strachan and 121 Massey. The Applicants submit that the evidence from Mr. Brogren, and his contractor is self-serving and not corroborated by the facts and unreliable. Such submission, however, is not supported by any evidence of “impossibility”. If such evidence had been produced by the Applicants, the conflict in evidence may have given rise to a finding by this court of a triable issue.
41I agree that as held in the case of Hayden et al, v. Warden et al., 1984 CarswellOnt 593, permitting obstructions to remain on a right-of-way is not proof of abandonment if the obstruction is not preventing it from being used in the manner desired. The direct evidence of its intended use confirms that the evidence in this application does not support abandonment or an intention to abandon.
42The parties agree that the intention to abandon can be proven by actual or express release or an implied intention can be established by acquiescence and the surrounding circumstances. To establish an intention to abandon, the person who benefitted from the ROW must have a full appreciation of his or her rights. Ms. Pavao’s evidence that the ROW was not used for the purpose for which it was intended for the period of 1986 to 2010. It is not enough to establish abandonment of the ROW as there is no evidence of who was allegedly refused access by Ms. Pavao or that they had the appreciation after rights, or that it was their right to abandon the ROW. I find that Ms. Pavao’s evidence does not support non-use or an intention to abandon the ROW.
43To the contrary, the evidence shows that the Respondents have used the ROW within the past ten years to access their properties and that there is no proper evidence of abandonment by the Respondents. I find that the evidence of any past encroachments on the ROW does not support a finding that they completely obstructed its use, (as evidenced by Mr. Hodgart’s use for the renovations).
44The Applicants further rely on the following evidence to support an express release and/or to establish an implied intention to abandon:
(a) “A house has encroached on the ROW since at least 1986.
(b) A boundary fence, with no gate, has obstructed the only “usable” portion of the ROW since at least 1987 (the date of the 176 Strachan Survey which I have found should be given no weight). Mr. Brogren rebuilt the boundary fence in 2013 and did not install a gate. The evidence of its use by the Respondents contradicts this evidence.
(c) In addition to the boundary fence, a wood frame shed obstructed the only usable portion of the ROW from at least 1986 to 2010. The shed spanned the entire available portion of the ROW and left less than one-foot gaps on either side. (Ms. Pavao’s cross-examination contradicts this evidence in part) and her evidence is not that it was never used.
(d) A metal framed teal shed obstructed the ROW from some point after 2010 until it was removed by Mr. O’Flanagan in August 2017. There is no direct evidence of this.
(e) Ms. Pavao’s husband built a second fence across the ROW in 1990 (the Driveway Fence) for the specific purpose of denying persons use of the ROW and signalling that it was no longer in existence. This proprosition is in part contradicted by the contractor’s evidence referred to above.
(f) Four trees, approximately 25-30 feet in height grow at the rear of 176 Strachan. These trees do not obstruct access to the ROW.
(g) At some time between 1905 and 1985, 1 foot 11 inches of the ROW was encroached by 123 Massey. The Respondents opposed the encroachment at the OMB.
45The Applicants rely on all of the above noted evidence (the unproven 174 Strachan Survey and 176 Strachan Survey that notes the ROW as “not in existence”; and the fact that the sheds that were originally at the rear of the Strachan properties no longer exist) in addition to Ms. Pavao’s evidence denying the existence of the ROW and denying access to it. .
46The ROW was included in the deeds for 174 Strachan and 176 Strachan. The Applicants submit that although including the description of a ROW in a deed is evidence that there was no intention to abandon, it is not a conclusive factor. It is a factor to be considered in totality with all the evidence on the issues of non-user, acquiescence and abandonment. The Respondents do not dispute this submission.
47The Respondents rely on the direct evidence of Mr. Hodgart, who transported building materials onto the 174 Strachan property in April 2015, when he constructed two decks for the previous owner. He reversed his truck along the ROW, and lifted materials used in the construction of the deck over the fence onto 176 Strachan Avenue and thereafter over the fence connected to 174 Strachan Avenue.
48There is no direct evidence from the Applicants on the use of the ROW. They have never lived at 121 Massey Street.
49I find the evidence on this Application, when considered in its totality, establishes that the ROW has been in use and is necessary for the owners of 174 and 176 Strachan to access the rear of their properties. I find that the evidence does not support a finding of non-use of the ROW or that the ROW has been abandoned.
50I therefore find that the Applicants have failed to establish that the Respondents’ or their predecessors in title abandoned the ROW either expressly or impliedly. The Application is therefore dismissed.
Costs
51The parties have reached an agreement on costs to be awarded on a partial indemnity basis to the successful party on these motions at the hearing of this matter. The successful parties, the Respondents, are therefore awarded costs on a partial indemnity basis of $32,228, in accordance with the agreement of the parties.
52Notwithstanding Rule 59.05, this Order is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.
Pollak J.
Date: May 12, 2020