INTRODUCTION

[1] Mr. Maurice Deforest and his wife, Mrs. Georgina Deforest own the property located at 13162 Winston Churchill Blvd (Applicants’ property). Mr. Deforest’s sister, Barbara Ilene Tuck, became the sole owner of the adjacent property located at 13140 Winston Churchill Blvd, in Terra Cotta, Ontario (Respondent’s property) after her mother died.

[2] The properties have been in the family since between 1930 and 1950. There has always been a shared driveway between the two properties. The property line runs down the shared driveway. The Deforests’ guests have parked their cars on the Respondent’s property for years. A septic system was installed in the 1970s, which runs over the property line and in 2014 the Applicants put in a French drain that runs slightly over the property line. The family business Deforest Quarry Ltd. has buildings on both properties and parked vehicles on both properties.

[3] No complaint was made by anyone about the shared driveway, where guests parked, the septic system or the French drain - until now. Now that the parties’ mother is deceased, the Respondent wants to put a fence between the two properties which would prevent the Applicants from using the shared driveway.

[4] The Applicants brought an application to i) to obtain an order declaring the Applicant’s interest in the land owned by the Respondent, ii) to restrain the Respondent from erecting a fence along the property line, and iii) to determine the parties’ rights and obligations under the Encroachment Agreement that deals with the buildings located on the Respondent’s property.

FACTS

1) The Ownership of the Properties

[5] The Applicants’ and Respondent’s parents, Harold Deforest and Rosie Deforest, owned three parts of land that back on to the Credit River. The legal description for the three parts of the property is described as follows:

(a) Part Lot 26, Concession 11, Equesing, Part 1 on 20R7227 Halton Hills [Pin 25010-0031] (“Part 1”).

(b) Part Lot 26, Concession 11, Equesing, Part 2 on Plan 20R17832, Halton Hills [Pin 25010-0099] (“Part 2”).

[6] Harold and Rosie Deforest purchased Part 3 in the 1950s (13140 Winston Churchill Blvd). They built a house on that property and the family moved into that house in 1963. Harold and Rosie Deforest resided in that house until they died.

[7] In 1968, Harold and Rosie Deforest purchased Part 1 and Part 2 (13162 Winston Churchill Blvd) from Maurice Deforest’s grandmother. The grandparents had owned the property since the 1930s. Maurice and Georgina Deforest moved into the grandparent’s house. The shared driveway was the access for both properties.

[8] On November 17, 1985, Harold and Rosie Deforest conveyed Part 1 to the Applicants. Part 2 was conveyed to the Applicants on July 29, 2008.

[9] Part 3 was conveyed to Rosie Deforest and the Respondent as joint tenants on December 13, 2013 after Harold Deforest died. The Respondent inherited the property in June 2015 after Ms. Rosie Deforest died.

[10] Part 1, Part 2, and Part 3 were all converted from Land Registry to Land Titles on October 28, 1996.

2) Description of the Properties

[11] The three properties form a pie shape where the back or round part of the pie is the Credit River. Part 1 and 2 together appear similar in size to Part 3. There is no access to Part 2 without access through Part 1 or Part 3. Part 1 and Part 3 front onto Winston Churchill Blvd. Attached to this decision are aerial photos taken of the properties in 2007 and 2017 that show the property lines(Appendix A).

[12] There is a shared driveway between Part 1 and Part 3. The Applicants’ house is on the north side of the driveway and the Respondent’s house is on the south side. This driveway has been used by Mr. Deforest’s and Ms. Tuck’s family since between 1930 and 1950. The driveway passes the Applicants’ house and there is a walkway that is used as the main entrance to the Applicants’ house from the shared driveway.

[13] There is an area near a stone wall in front of the Respondent’s house that is on her property. This area has been used by the Applicants’ guests for parking since they owned the house in 1985 without any objection until now.

[14] The Applicants’ garage was at the end of the shared driveway closer to Part 1. After this dispute, the Applicants moved the garage so that it is entirely on Part 1. The garage has both a front and back door. The fact that there was a back door was not disclosed in the original application for an injunction. At the back of the garage is a laneway. That laneway used to go to the Respondent’s property and was used pursuant to the Encroachment Agreement. The laneway is now a dead-end. From the rear of the garage you can drive behind the Applicants’ house and behind a building that quarry business operates out of and through a parking lot where trucks are parked to get to Winston Churchill Blvd. The driveway used by the trucking business was built by the Applicants in 1993.

[15] In 1969 and 1970, Mr. Deforest and Ms. Tuck’s father installed a septic system that extends onto the Respondent’s property. It has remained in use since that time. The Respondent was about 15 to 16 years old when the septic system was installed. She lived with Harold and Rosie Deforest on Part 3 at that time.

[16] There are two runs on the septic system that are on the Respondent’s property. The first run is fifty-five inches over the property line and the second run is twenty inches over the property line.

[17] In 2014, the Applicants installed a French drain close to their house because they were having water issues in their basement. This drainage system is connected to the septic system. The French drain is located between the existing driveway and the marked property line. The end of the septic system is in the same area. The marked locations exceed the marked property line of approximately one to three feet depending on the reference point location. According to an engineering report, the relocation of the French drain is not possible due to the proximity of the house, hydro connections, septic system location and the topography of the land.

3) The Encroachment Agreement and Amending Agreement

[18] Harold Deforest established a stone masonry business in 1946. The business is currently owned and operated by Mr. Deforest, and his brother, Doug Deforest. The business operated on all three properties prior to the dispute between the parties. There were numerous buildings on all three properties related to the business. In addition, company vehicles parked on all three properties.

[19] In 1993, the Applicants built a driveway and parking lot that is used by the business. There is a roadway that follows the river and goes onto Part 2 and Part 3. There were various buildings and vehicles located on Part 2 and 3 that were related to the operation of the business.

[20] On February 18, 2014, Ms. Tuck, the Company, Mr. Deforest and Ms. Tuck’s mother entered into an Encroachment Agreement (Encroachment Agreement). This Agreement licenced, among other things, the Company to encroach onto the Respondent’s property to operate the business.

[21] The Agreement was subsequently amended on March 23, 2015 (Amending Agreement). The Amending Agreement states that the Respondent shall have use of the green building and exclusive use of the stone garage commencing on February 5, 2015.

[22] In accordance with the Encroachment Agreement, buildings were constructed or installed by the Company at its expense on the Respondent’s property.

[23] The Encroachment Agreement allowed the licensor to terminate the agreement and for the Company to remove the encroachments (the buildings) at its own expense and to restore the Respondent’s property to substantially the original state as far as is reasonably possible.

4) The Dispute & Legal Proceedings

[24] On December 19, 2018, the Respondent gave notice that the domed building and quarry material were to be removed by August 1, 2019 as per the Encroachment Agreement. No vehicles other than the truck in the domed building or vehicles used to remove quarry material were to use the property. The letter also indicated that Georgina Deforest was given notice under s. 3 of the Trespass to Property Act that customers and employees are prohibited from using the driveway or to park on the property. The Respondent indicated that she intended to fence the driveway in the spring to protect her property rights.

[25] The Company removed some of the buildings pursuant to the agreement. Two buildings still remain, the green building and the stone shed. They are subject to a dispute under the Amending Agreement.

[26] The Applicants state that the Respondent has called the police a number of times when anyone uses the shared laneway. In addition, the Respondent’s husband has shouted obscenities at those who use the driveway. In the winter, the Respondent erected a snow wall that prevented the Applicants from utilizing the shared driveway.

[27] The Applicants obtained an ex parte order from Justice Bielby on August 20, 2019 that temporarily restrained the Respondent from constructing a fence on the Respondent’s property located at 13140 Winston Churchill Blvd. The Applicants claimed that they had an easement and/or adverse possession over a portion of the Respondent’s property.

[28] The restraining order was varied on consent on September 26, 2019 permitting the Respondent to build a fence at the back of the property to the Applicants’ garage, pending the hearing of this application.

[29] The parties agree that this matter may properly be resolved by way of an Application as opposed to an Action.

Issues to be Determined on this Application

[30] The following issues need to be determined on this application:

What rights, if any, do the Applicants have to the shared driveway?
What rights, if any, do the Applicants have over the land where the septic system is located?
What rights, if any, do the Applicants have over the land where the French drain is located?
Should the Respondent be restrained from erecting a fence or other structure along the registered property line?
What are the parties’ respective rights and obligations under the Encroachment Agreement and Amending Agreement?

Issue #1: What right do the Applicants have to use the shared driveway?

Position of the parties

[31] In the notice of application, the Applicants submitted that they had a right to the use of the shared driveway through an implied grant and a prescriptive easement. On the hearing of the application, the Applicants abandoned their argument that they had a prescriptive easement and only argued that they had an implied grant to use the shared driveway and parking located by the stone wall.

[32] In support of this argument, the Applicants rely on the fact that they have used this shared driveway and parking by the stone wall for as long as they have lived at the property, without complaint. Moreover, they submit that the use of the shared driveway is necessary for their reasonable enjoyment of their property because it has the closest access to the main entrance of the house.

[33] The Respondent submits there was no implied grant to use the driveway or parking. There was ample opportunity for the parties to have made an express grant. The fact that none were made supports a finding it was never intended that there be a grant to the shared driveway and parking.

[34] Moreover, even if the intention of the parties at the time of the transfer was that the Applicants could use the shared driveway, the implied grant should not be granted because the use of the shared driveway is not necessary for the Applicants’ reasonable enjoyment of the property. There is another driveway that the Applicants can use to access their garage.

Analysis

[35] When Henry and Rosie Deforest sold part of their property to the Applicants, there was no express easement granted for the use of the driveway.

[36] The Applicants are precluded from relying on the fact that they used the laneway for 20 years to establish that they have an easement, because the property was registered under the Land Titles Act, R.S.O.1990, Chapter L.5., s. 51, in 1996 and they purchased the property in 1985. Section 51 of the Act requires that land registered under the Land Titles Act be subject to subsisting easements.

[37] Generally speaking, one can only obtain a grant of an easement from the registered owner and registering it on title: see s. 78(5) of the Act. There are, however, exceptions to this general principle. A right of way arising from an implied grant is not defeated by the statutory provisions. In this case, the Applicants submit that they have an implied grant with respect to the use of the shared driveway and parking.

[38] Anger and Honsberger, Law of Real Property, Third Edition (Toronto: Thompson Reuters Canada Limited, 2012), at pages 17-9 and 17-10 explains what an implied grant is and the requirements that must satisfied:

When land owned by one person is divided and part of the land conveyed to another, even if there are no words in the instrument expressly creating an easement, a court will imply that the new owner was granted easements of necessity and any continuous and apparent easements which existed as quasi-easements during unity of ownership. Thus, the implied grant will render the retained lands servient and the newly acquired portion dominant.

In order for a quasi-easement which was exercised during unity of ownership to become an easement by implication of law, the right claimed must meet certain criteria:

(a) it must be necessary to the reasonable enjoyment of the part granted;

(b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and

(c) it must have been apparent at the time the land for which the easement is claimed was acquired.

For an easement to be apparent, its previous use must have been indicated by some visible, audible or other apparent evidence on either the quasi-dominant or the quasi-servient tenement which could be seen, heard or smelled by a reasonable inspection."

See also: 3021386 Nova Scotia Ltd. v. Barrington (District), 2015 NSCA 30, [2015] N.S.J. No. 119 (C.A.), at para. 15; Cringle v. Trapko, 1994 CarswellOnt 734 (Ont. C.J.), (1994) 41 R.P.R. (2d) 74, at p. 77; Dobson v. Tulloch, 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533 (Ont. Gen. Div.), 1994 CarswellOnt 691, at para. 29; Canada Lands Company CLC Limited v. Trizechahn Office Properties Limited, 2000 ABQB 166, at para. 15.

i) The driveway and parking were used for the benefit of the party granted

[39] The conveyance of the properties in 1985 and in 2008 is silent on the question of whether the Applicants have a right of way to use the driveway and to park vehicles near the stone wall. I am nonetheless satisfied that at the time of conveyance in 1985 and in 2008 that both Harold and Rosie Deforest on the one hand, and the Applicants on the other hand, had a common intention that after the conveyance of Part 1 and 2, the Applicants would be permitted to use the driveway and the parking by the stone wall for the following reasons.

[40] The shared driveway has been in existence since at least 1963. Prior to the conveyance of the property to the Applicants, 13140 and 13162 Winston Churchill Blvd shared the driveway.

[41] There is no indication that either Harold or Rosie Deforest intended to restrict the use of the shared driveway or parking once they sold the property to the Applicants. The evidence indicates the exact opposite. When 13162 Winston Churchill Blvd was conveyed to the Applicants in 1985 and in 2008, Rosie and Harold Deforest and the Applicants continued to use the driveway and the parking in the same way they had previously used it, as attested by several family members and a neighbour. It was the shared driveway between the two family homes. There could not be any misunderstanding about the basis upon which the driveway and parking could be used. It can be assumed that when Harold and Rosie Deforest sold the property, they were aware of the location of the property line dividing the two properties.

[42] The situation in this case is similar to that of Barton v. Raine et. al., 29 O.R. (2d) 685, 1980 CanLII 1932 (ON CA), where the Court of Appeal upheld a trial judge’s finding that there was an implied grant. In that case, property was conveyed to the son and daughter-in-law by the father. There was a driveway between the father’s house and the son and daughter-in-law’s house. The Court of Appeal found that “the use of driveway as a common passageway to and from the two garages was an accepted reality of their lives throughout the whole of their occupancy of the property.” In finding that there was an implied grant to use the driveway, the Court noted,

Throughout the whole of this period the driveway was a tangible physical fact, there to be seen by all who chose to see it, and the manner of its use would have obvious to even the most casual observer of the physical features of the two properties.

Similarly, there could be no misunderstanding by the Respondent that the Applicants were granted use of the shared driveway.

[43] Similarly, in Cringle, the court found an implied grant where the parties shared a driveway that was used by both parties to access their garages at the rear portions of their property. Kimberly-Clark originally owned the subdivision and housed its employees on the properties. Eventually, they sold off the lots. Kimberly-Clark did not expressly grant either party an easement over the other lot. The Court held that it was intended that both parties have the use of the mutual driveway and that the use of the mutual driveway was essential to the use of the Respondent’s property.

[44] The Applicants installed a driveway in 1993 for the Quarry business. The new driveway did not change the use of the shared driveway or where the Applicants’ guests parked. The evidence demonstrates that the Applicants and their guests continued to use the shared driveway and parking by the wall until the dispute arose between the Respondent and the Applicants.

[45] After Harold Deforest died and the Respondent and Rosie Deforest became joint tenants, the use of the shared driveway continued without any objection from either Rosie Deforest or the Respondent. Nor did the Respondent give any indication that she did not believe the Applicants had a right to use the driveway and parking. Rather, it appears that once the Respondent’s mother died, the Respondent sought to take away rights that had been granted by the parents for the use of their son and daughter-in-law.

ii) The easement was apparent at the time the land was acquired

[46] The shared driveway existed before the Applicants acquired the property in 1985. It was apparent to everyone that this was the driveway that was used for both properties, particularly as there was no other driveway until 1993.

[47] Moreover, the inference that the driveway and parking would be used by the Applicants is compelling because the transfer of the property was between family members. As noted in Barton, had the property been purchased by some hypothetical third party, the inference as to the intention of the parties would be less compelling.

iii) Is the easement necessary for the reasonable enjoyment of the property granted?

[48] The key issue to determine is whether the easement is necessary for the Applicants’ reasonable enjoyment of the property.

[49] The Respondent submits that it is not necessary for the Applicants to use the shared driveway. The Applicants can use the driveway that is used by the Quarry operations, drive through that parking area, and follow the laneway that provides access to the back of the garage. In support of this argument, the Respondent notes that the Applicants moved their garage over onto their own property sometime between 2015 and 2017. The Respondent also notes that there are no costs associated with using the back laneway and back entrance to the garage.

[50] In determining if the easement is necessary for the reasonable enjoyment of the property, the requirement of necessity is interpreted with more latitude than what is required to find an easement of necessity. As such, the Applicants need not demonstrate that without the grant they cannot access their property: Dobson v. Tulloch, at para. 39: See Halsbury at p. 31, para. 61; Anger & Honsberger, The Law of Real Property, at pp. 17-19; 3021386 Nova Scotia Ltd. v. Barrington (District), 2014 NSSC 1, [2014] N.S.J. No. 6, at para. 31.

[51] Various courts have characterized the term “convenience” under an implied grant in slightly different ways. In DuVernet v. Eisener, 1951 CanLII 323 (NS CA), [1951] N.S.J. No. 18, 1951 CarswellNS 24 (C.A.), at para. 21, the Court of Appeal for Nova Scotia held that the easement must be “necessary for the reasonable and convenient use of the land conveyed.” In Cringle, at para. 13, the court referring to Knock v. Knock (1897) 1897 CanLII 91 (SCC), 27 S.C.R. 664, held that the easement must be “necessary for the convenient use and enjoyment of the land.”

[52] In 3021386 v. Barrington (District), the court held at paragraph 35 that the use of the word convenient is “simply another way of saying that the use or enjoyment being referred to was that which was reasonable, suitable or proper.”

[53] A considerable inconvenience in creating an alternative to the easement will be sufficient to establish the necessity requirement: for example, in Canada Lands, at para. 17, the court held that it would cause considerable inconvenience, both in terms of finding an alternate location and the actual physical relocation of the waste system for an office building.

[54] Similarly, in Germain v. Brar, 2010 ABQB 530, at para. 50, the court held that the claimants would have suffered considerable inconvenience because in order to avoid driving over some portion of the servient tenement and to access the garage, they would have had to re-structure and renovate the house and retaining wall. In English v. Wood, [1981] N.S.J. No. 424, 1981 CarswellNS 261 (S.C.T.D.), the court found an implied easement even though the driveway in question could be moved 13 feet to the north.

[55] I am satisfied that access to the shared driveway is necessary for the Applicants’ convenient use and enjoyment of the property. The use to which the Applicants seek to make of the property is reasonable, suitable, and proper.

[56] I do not find that it is necessary for the Applicants reasonable enjoyment of the property that the easement permit the guests to park their cars directly in front of the Respondent’s house and would limit the easement accordingly. The reasonable enjoyment of the Applicants’ property is not impacted if their guests are precluded from parking directly in front of the Respondent’s house. There is ample room for guests to park their cars further up the shared driveway. I find that it is reasonable that guests park their cars on the shared driveway on the west side of the Respondent’s house closest to the north side of the driveway. The guests and Applicants may still use the shared driveway to turn around and exit. This creates little inconvenience for the Applicants and their guests and recognizes the inconvenience caused by guests parking their cars in front of the Respondent’s residence when they are visiting the Applicants’ house.

[57] In concluding that an easement to use the shared driveway is necessary for the Applicants’ reasonable and convenient enjoyment of the property, I recognize that there is another way to access the garage through the rear laneway and that the Applicants moved the garage onto their own land. I also recognize that there is no cost associated with requiring the Applicants to use the back laneway. Despite these facts, I find that having to access the garage by going through the driveway that is used for the Quarry business creates considerable inconvenience that would impact the reasonable enjoyment of the land for the following reasons.

[58] First, the alternate driveway requires the Applicants to drive through the Quarry business operations. The Applicants’ property and that driveway are busier than they were before, because as of August 18, 2019, the business vehicles were no longer permitted access to the shared driveway as they had in the past.

[59] Second, the shared driveway provides access to the main entrance of the house, as attested to by the Applicants and several other family members. This makes sense because persons do not want to use the business entrance to their private house, particularly given the large vehicles located on the property. The shared driveway gives the Applicants the shortest access route to the main entrance of their house. The Applicants can park in the driveway and take their groceries into the house and then park their car in the garage that is much further from their house. Without access to the shared driveway, the Applicants’ enjoyment of the property is unreasonably limited.

[60] Finally, there does not appear to be room for the Applicants to build their own driveway on that side of the house on their own property.

Issue #2: Do the Applicants have any rights to the land where the septic system is located?

[61] The septic system was installed by Harold Deforest in 1970 when he owned both properties. Two runs are over the property line. The first run is fifty-five inches over the property line and the second run is twenty inches over the property line. The location of the septic system is on the north side of the driveway closest to the Applicants’ property.

Position of the parties

[62] In the Applicants’ written submissions, they argued that there was an implied grant and that they had a claim of adverse possession over the land. In oral argument, the Applicants focused their argument that there is an implied grant to the property where the septic system was installed when the property was transferred to them in 1985. Harold Deforest installed the septic system and knew where it was located. In addition, it would create an unreasonable inconvenience to require the applicants to remove the two runs that are over the property line.

[63] The Applicants state that the installation of the fence will cause harm to the septic system and the French drain. The Respondent states that she has no intention of placing any fence posts where the septic system or French drain are located.

[64] The Respondent submits that for there to be an implied easement, the previous use must be indicated by some visible audible or other apparent evidence: 3021386 Nova Scotia Ltd. v. Barrington (District), at para. 15. The Respondent submits that the Applicants have not sufficiently demonstrated that the dominant tenement knew that the septic system was over the property line, because the septic system was underground.

Analysis

[65] The requirements to establish an implied grant are set out in paragraphs 37-38 above so I will not repeat them.

[66] As recently noted by the Ontario Court of Appeal in Paleshi Motors Limited v. Woolwich (Township), 2020 ONCA 625, in discussing acquiescence in the context of a prescriptive easement for a watermain, the court is not required to find actual knowledge. Imputed knowledge is sufficient. Knowledge can be imputed to owners of property if “an ordinary landowner, diligent in the protection of her interests, would have had a reasonable opportunity of becoming aware of the watermain”: at para. 15.

[67] I find that the previous owners knew about the septic tank and its location, and in any event, the Respondent had a reasonable opportunity to become aware of the location of the septic system when she took title to the property.

[68] Harold Deforest installed the septic system in 1970 at 13140 Winston Churchill. Given the location of the shared driveway and the septic system, it is reasonable to infer that he knew at the time that the septic system encroached onto 13140 Winston Churchill Blvd., and intended to grant the Applicants use of the property where the septic tank was located: Tasker v. Badgerow, 2007 CanLII 23362 (Ont. S.C.), at para. 103, referring to Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), 1972 CanLII413 (Ont. S.C.).

[69] I find that there was a common intention between Harold and Rosie Deforest and the Applicants that the Applicants would be entitled to continue to use the septic system although it was encroached 13140 Winston Churchill Blvd. Neither Harold nor Rosie Deforest objected to the use of the septic system once the Applicants took possession of 3162 Winston Churchill Blvd in 1985. For over 40 years the Applicants have used the septic system without any objection from Harold or Rosie Deforest.

[70] I also note that the Respondent was fifteen to sixteen years old when the septic system was installed and that she lived with Harold and Rosie Deforest at 13140 Winston Churchill Blvd, so it is fair to infer that she was aware of the fact that the septic system was being installed and at least aware of its general location. If the Respondent had any concern about the location of the septic system, she should have raised her concern when she became a joint tenant of 13140 Winston Churchill Blvd.

[71] It does not lie well in the Respondent’s mouth to state that now that her mother has died there is no evidence that either Harold or Rosie Deforest were aware that the septic system was on their property and not the Applicants’ property.

[72] The septic system is necessary for the reasonable and convenient use of the property that was conveyed. A house needs a system to deal with waste, whether it be a septic system or access to a sewage system. The Respondent submits that the Applicants did not provide evidence that the septic system could not be moved or that the cost would be prohibitive. While this evidence would have been helpful, I do not find the failure to provide this evidence fatal. The septic system has been there for 40 years. It is necessary to the reasonable enjoyment of the residence. It is also reasonable to infer that there would be considerable inconvenience in terms of physically relocating the septic system or part of the septic system as it is in the ground regardless of what the cost might be: Canada Land, at para. 17; Watson v. Charlton, 2016 BCSC 664, at para. 191.

[73] The inconvenience in moving the septic system is further complicated by the fact that the engineering report states that the French drain that are connected to the septic system cannot be moved due to the proximity of the house, hydro connections, the septic system location, and the topography of the land. It is reasonable to infer that moving the septic system would cause difficulties for the use of the French drain.

[74] While the Applicants raised the issue of adverse possession of the land where the septic was located and the French drain, this was not pursued in oral argument. I agree with the Applicants that the land on the north side of the driveway was generally treated as the Applicants’ land, however I do not find that the Applicants’ established adverse possession of the land. There is insufficient evidence to find the Applicants effectively excluded the Respondent from possession as is required to make a claim for adverse possession: McClatchi v. Rideau Lakes (Township), 2015 ONCA 233, at paras. 9-11.

Issue #3: Do the Applicants have any rights to the land where the French drain is located?

Position of the parties

[75] The Applicants installed a French drain from their property on the south side of their house, down the shared laneway in 2014.

[76] The focus of the Applicants’ argument is that Ms. Rose Deforest and the Respondent had full knowledge of the installation of the French drain and therefore acquiesced to the use of their property for this purpose.

[77] The Respondent submits that there is no indication that Rosie Deforest or Ms. Tuck were aware the French drain was over the property line and therefore they could not acquiesce.

Analysis

[78] The French drain runs between the existing driveway and marked property line. The French drain is over the property line approximately a distance of one to three feet, depending on the reference point taken.

[79] I find that there was an implied grant for the Applicants to use the small patch of grass on the northside of the driveway to the property line and that the Respondent acquiesced to the installation of the French drain.

[80] I am satisfied that at the time of conveyance in 1985 and in 2008 that Harold and Rose Deforest on the one hand and the Applicants on the other hand had a common intention that after the conveyance the Applicants would be permitted to use the small patch of grass on the north side of the driveway to the property line as their own property.

[81] As stated by the Applicants, the property north of the driveway was treated as if it belonged to the Applicants and the property south of the driveway was the Respondent’s property. As shown by the aerial diagram, the small grassy patch of land on the north side of the driveway was used by the Applicants as part of their yard. There is a pathway to their house, which is the entrance they have used since they acquired the residence in 1985.

[82] The intention that the Applicants be permitted to use the land on the north side of the driveway is further demonstrated by the fact that Harold Deforest installed a septic system on the north side of the driveway.

[83] In addition, no one complained about the Applicants’ use of the land on the north side of the driveway to the property line until now. The Applicants and their guests have used the pathway and the yard for over thirty years without complaint.

[84] The use of the land on the north side of the driveway to the property line is necessary for the Applicants’ reasonable enjoyment of the property. The walkway is necessary to enter the residence. Based on the aerial photographs it is not convenient to move the walkway to a location that is only on the Applicants’ property. The walkway would have to be essentially at the back of the property or become twice as long. The use of the lands on the north side of the driveway to the property line is also necessary for the maintenance and upkeep of the house, as demonstrated by the fact that the French drain had to be installed in that location to ensure that the basement of the Applicants’ residence did not flood.

[85] The Applicants provided a letter from RLV Consulting Engineering that supervised the installation of the French drain. The letter indicates that the relocation of the drainage system is not possible due to the proximity of the house, hydro connections, the septic system location, and the topography of the land.

[86] Even if the implied grant did not contemplate the installation of the French drain, I am satisfied that Rosie Deforest and the Respondent acquiesced to the installation of the French drain.

[87] I agree with the comments noted in Devaney v. McNab, 69 D.L.R. 231, 1921 CanLII 557 (ON CA), in considering if a party has used an easement that is inconsistent with the original grant,

where the structure complained of is permanent in its nature, there is a real danger that the plaintiff, if he does not assert his rights, and acquiesces in its continuance, may be taken to have abandoned his right to complain, and to have so acquiesced in the thing complained of as to prevent him from hereafter asserting his rights.

See also Tasker v. Badgerow, [2007] O.J. No. 2487, 2007 CarswellOnt 4086 (Ont. S.C.).

[88] I find that the Respondent either knew that the French drain was over the property line or had sufficient opportunity to make such inquiries, and therefore acquiesced to the installation of the French drain. The Respondent cannot complain now about the installation of the French drain.

[89] A survey was prepared in 2006 setting out the boundaries for the three parts of land. This survey was done prior to Harold and Rosie Deforest conveying Part 2 to Maurice and Georgina Deforest. The survey shows how close the property line is to the Applicants’ residence and that the Respondent’s property extends beyond the driveway to the grassy area on the north side of the driveway closest to the Applicants’ home.

[90] Both Rosie Deforest and the Respondent would have been aware of the French drain that was installed beside the Applicants’ residence on the grassy area because the construction would be visible from the shared driveway.

[91] Neither Rosie Deforest nor the Respondent made any complaint about the French drain being installed, nor did they ever raise a concern as to whether the French drain was encroaching on their property. This fact combined with the existence of the survey allows a reasonable inference to be drawn that Rosie Deforest and the Respondent were aware that the French drain was on their property or such knowledge can be imputed because they had a reasonable opportunity to inquire whether the French drain was on their property: Paleshi, at para 15. Their lack of concern about the use of the land on the other side of the driveway makes sense because the families treated the shared driveway as dividing the two-family properties.

Issue #4: Should the Respondent be restrained from erecting a fence along the registered property line?

Position of the parties

[92] The Applicants submit that if the court is satisfied that the Applicants have an easement over the shared driveway, there should be a permanent injunction precluding the Respondent from building a fence down the driveway.

[93] The Respondent’s position is that the Applicants have not demonstrated that they have rights to the property and therefore there is no need to restrain the Respondent from building a fence down the property line.

Analysis

[94] A permanent injunction is granted after there is a final adjudication of rights: 1711811 Ontario Ltd. (Adline) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at para. 56, citing Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Canada Law Book, 2013), at para. 1.40, citing Liu v. Matrikon Inc., 2007 ABCA 310, at para. 26.

[95] The test for a permanent injunction is different than that of an interlocutory injunction. To obtain a permanent injunction, the party must establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Evidence of irreparable harm and balance of convenience are not per se relevant but some of the evidence that the court may consider in evaluating those issues may be considered in determining if the court ought to exercise its discretion to grant final injunction relief: 1711811 Ontario Ltd., at para. 79 citing, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, at paras. 27-28.

[96] The court must consider whether the Respondent has interfered with the Applicants’ rights or intends to do so. Based on the photographs and the affidavits provided, I am satisfied that the Respondent has interfered with the Applicants’ rights to use the shared driveway. The Respondent’s partner has used profanity to try and intimidate persons from using the driveway and has called the police when the shared driveway was used. In addition, there is evidence that the Respondent erected a snow wall on the shared driveway to prevent the Applicants from accessing the front of their garage.

[97] Injunctive relief is onerous and therefore is only available when it is absolutely necessary to ensure that a party is not deprived of their rights. Given the Respondent’s behaviour, I am satisfied that it is appropriate to provide a permanent injunction preventing the Respondent from erecting a fence down the property line. This will ensure that the Applicants may continue using the shared driveway as they are entitled to.

Issue #5: How should the Encroachment Agreement be interpreted?

Relevant facts

[98] On February 18, 2014, Rosie Deforest, Barbara Tuck and the Quarry Company entered into an Encroachment Agreement. This agreement permitted the company to encroach onto the Respondent’s property with respect to several buildings including:

a) A single car garage with vinyl siding, approximately 20 by 20 feet;

b) Gas shed;

c) Blacksmith’s shop with steel siding;

d) Domed building for parking truck;

e) Existing stone inventory; and

f) Office building.

[99] Recital B to the Encroachment Agreement notes that the encroachments were constructed or installed by the Company.

[100] Recital C to the Encroachment Agreement states that the encroachments and reasonable access may “continue only in accordance with and subject to the terms and conditions set out in this Agreement.”

[101] Paragraph 2(i) of the Encroachment Agreement allows the licensor (Rosie Deforest and Barbara Tuck) to terminate the Encroachment Agreement the earliest of i) the date of removal of the Encroachments from the lands, ii) upon expiry of the notice from the licensor requiring removal of the Encroachments in accordance with and pursuant to the provision of paragraph 5 of the agreement, or iii) a term of 10 years from the date of the agreement.

[102] Paragraph 5 of the Encroachment Agreement requires the Company, within eight months of receiving written notice from the licensor, to remove the encroachments at the Company’s own expense and to restore the property to substantially the original state as far as is reasonably possible.

[103] During the term of the Encroachment Agreement, and on consent of the licensor, the Company removed the office building, gas shed, blacksmith shop and the single car garage.

[104] On August 14, 2014, the Respondent and her husband and the Company agreed that the Respondent could store some of their items in the Company’s shed, but that neither the Company, Maurice nor Doug Deforest would be liable for any damage to the items.

[105] An Amending Agreement was entered into on March 23, 2015 that permitted the Respondent to use portions of some of the encroachments. That Agreement provided the Respondent with the exclusive use of the “green building” and the loft of the “stone garage” until such time as the earlier event. The relevant events include:

A) the Licensor, gives notice to Deforest Bros. Quarries Ltd pursuant to Paragraph 5 of the Encroachment Agreement, or

B) February 17, 2024.

[106] In exchange, the Company was given exclusive use of the domed building and the downstairs area of the stone garage and to store sufficient stone on the Respondent’s property and to park trucks and floats and equipment at the back of the property.

[107] On December 19, 2018, the Respondent wrote and advised that the domed building and the Quarry material had to be removed by August 1, 2019 as provided for in paragraph 5 of the Encroachment Agreement. She also stated that no vehicles, other than the truck in the domed building or vehicles used to remove quarry material, were permitted on her property. At that time, the Respondent advised that she intended to erect a fence down the property line in the spring of 2019.

Position of the Parties

[108] The Applicants submit that upon being notified on December 18, 2018 that the Respondent terminated the Encroachment Agreement, the Company was required to remove the encroachments that it paid to erect pursuant to paragraph 5 of the Encroachment Agreement.

[109] The Applicants submit that the Company was precluded from removing all of the buildings because the Respondent wants to keep the buildings. The Applicants submit that if the Respondent wants to keep the buildings, then the Respondent should pay for the buildings.

[110] The Respondent submits that the buildings described in the Amending Agreement are to be treated differently than the other buildings listed in the Encroachment Agreement, and the Applicants are therefore not permitted to remove the two buildings until the expiry of the Amending Agreement.

[111] It is the Respondent’s submission that the parties did not conduct themselves in accordance with the terms of the Amending Agreement, as demonstrated by the fact that the Respondent invested money in both buildings. She purchased white siding for the green building and the stone building. She also purchased and installed insulation, a power garage door opener and upgraded the hydro, doors, and lighting.

Analysis

[112] A court must interpret the contracts according to the wording and terms that are used. The Court must “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47. The language of the contract remains preeminent. The surrounding circumstances, “must never be allowed to overwhelm the words of the agreement”: Sattva, at para. 57.

[113] Paragraph 5 of the Encroachment Agreement states that the license will remain in effect until “the date of removal of the Encroachments from the lands or upon the expiry of the notice from the licensor requiring removal of the Encroachments in accordance with the provision of paragraph 5.” Paragraph 5 requires the Company to “remove the Encroachments within eight months of receiving written notice from the Licensor directing the removal of such Encroachments.”

[114] The letter dated March 11, 2015 states that the Company wishes to confirm “that the following amendments to the Encroachment Agreement, dated the 18th day of February (the Encroachment Agreement) are acceptable”. The Amending Agreement gave the Respondent exclusive use of the green building and the use of the loft of the stone garage until such time as the earlier of I) the licensor gives notice to Deforest Bros. Quarries Ltd, pursuant to paragraph 5 of the Encroachment Agreement or ii) February 17, 2024.

[115] The wording in the Amending Agreement demonstrates that the Amending Agreement is to be read together with the original Encroachment Agreement. It is not a separate agreement.

[116] In the letter dated December 19, 2018, the Respondent made several complaints about the Company breaching the Encroachment Agreement. The Respondent also gave notice that the domed building and the quarry material were to be removed by August 1, 2019 as provided in paragraph 5 of the Encroachment Agreement.

[117] The Respondent therefore terminated the Encroachment Agreement. There is no indication in the Encroachment Agreement or Amending Agreement that termination of the Encroachment Agreement is on a building to building basis or that the domed building and the Green building are to be excluded from the terms of the Encroachment Agreement. Absent agreement by the parties, the Company is responsible for removing these buildings as stated in the Encroachment Agreement.

CONCLUSION

[118] The following orders are made:

The property municipally known as 13140 Winston Churchill Boulevard, Terra Cotta, Ontario bearing the legal description: PT LT 26, CON11 ESQ, PART 3, 20R17832; HALTON HILLS (“the Property”) is subject to an easement over, along and upon a strip of land identified by the existing laneway as identified in Schedule “A” of this Order in favour of the following properties:

a. the property municipally known as 13162 Winston Churchill Boulevard, Terra Cotta, Ontario bearing the legal description: PT LT 26, CON 11 ESQ, PART 1, 20R7227: HALTON HILLS (“Part 1”), and

b. the property municipally known as 13140 Winston Churchill Boulevard, Terra Cotta, Ontario bearing the legal description: PT LT 26, CON 11 ESQ, PART 2, 20R17832; HALTON HILLS (“Part 2”).

The Easement does not permit the Applicants and their guests to park vehicles on the south side of the Easement (driveway) closest to the Respondent’s residence. This includes the area in front of the stone wall in front of the Respondent’s residence. This is depicted in Schedule A.
The Applicants may register this Order on titles of the property, Part 1 and Part 2.
The Respondent is restrained from altering the Easement or preventing or interfering with access to and use of the Easement.
The Applicants shall have the property and Easement surveyed at their own costs by a surveyor duly licenced by the Association of Ontario Land Surveyors, with a survey to reflect the general boundaries identified in Schedule “A”. The Applicant is at liberty to register the survey resulting therefrom, on title to the property.
The “Stone Building and “Green Building” as defined in the Affidavit of Albert Maurice Deforest sworn September 6, 2019 are the property of Deforest Bros. Quarry Ltd.
Deforest Bros Quarry Ltd. or such persons and equipment as they shall reasonably permit, shall have access to the Property for the purpose of complying with Paragraph 5 of the Encroachment Agreement.

COSTS

[119] At the end of the motion, I asked both parties to provide me with their bill of costs. I have received the Bill of Costs from the Applicants.

[120] The parties are encouraged to work out the issue of costs between themselves. If the parties are unable to resolve the issue of costs, the Applicants shall serve and file written submissions of no more than two pages, double spaced, not including relevant case law, by November 9, 2020. Any offers to settle should also be filed.

[121] The Respondent may file a response consisting of written submissions of no more than two pages, double-spaced, not including the relevant case law, and a detailed bill of costs within 10 days of receipt of the Applicants’ costs submissions.

[122] The Applicants may file a one-page reply, double spaced within five days of receipt of the Respondent’s cost submissions.

Dennison J.

Released: October 26, 2020

APPENDIX “A” / SCHEDULE “A”

COURT FILE NO.: CV-19-3447-0000

DATE: 2020 10 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DEFOREST BROS. QUARRY LTD., ALBERT MARICE DEFOREST and GEORGINA MARE DEFORST

Applicants

and -

BARBARA ILENE TUCK

Respondent

REASONS FOR JUDGMENT

Dennison J.

Released: October 26, 2020

Deforest Bros. v. Tuck, 2020 ONSC 6439

Case Summary

INTRODUCTION

1) The Ownership of the Properties

2) Description of the Properties

3) The Encroachment Agreement and Amending Agreement

4) The Dispute & Legal Proceedings

Issues to be Determined on this Application

Position of the parties

Analysis

(a) it must be necessary to the reasonable enjoyment of the part granted;

(b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and

(c) it must have been apparent at the time the land for which the easement is claimed was acquired.

i) The driveway and parking were used for the benefit of the party granted

ii) The easement was apparent at the time the land was acquired

iii) Is the easement necessary for the reasonable enjoyment of the property granted?

Position of the parties

Analysis

Position of the parties

Analysis

Position of the parties

Analysis

Relevant facts

Position of the Parties

Analysis

CONCLUSION

COSTS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 1