Court File and Parties

COURT FILE NO.: CV-20-960 DATE: 2020-10-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Caterina Galati, Rose Galati, Nicola Galati, Rose Schabla, Fiore De Francesca and Stephanie De Francesca Applicants

– and –

The Corporation of the Township of Tiny Respondent

COUNSEL: Matthew Karabus, Chris Hummel and Peter Gross, for the Applicants John Barzo and Justin Vanden Ende, for the Respondent

HEARD: October 5, 2020 via Zoom

REASONS FOR DECISION

CASULLO J.:

OVERVIEW

[1] The Applicants have commenced an application seeking, inter alia, a declaration that: they have possession of the lands at issue, more particularly described below; that said possession is sufficient to exclude the Respondent and all other persons from entering onto and interfering with their rights in the disputed lands; and that the Respondent’s actions in respect of the disputed lands constitutes a trespass against them.

[2] In the motion before me, the Applicants seek an interlocutory injunction prohibiting the Respondent from any step, action, or conduct that may directly or indirectly interfere with the use, possession, and enjoyment by the Applicants of the disputed lands.

THE PARTIES

[3] The Applicant, Caterina Galati (“Galati”), owns and seasonally resides at 5 Marina Road, Tiny Township (“Lot 92”). Galati purchased the property in 1988.

[4] The Applicant, Rose Schabla (“Schabla”), owns and seasonally resides at 328 Tiny Beaches Road South, Tiny Township (“Lot 93”). Schabla has lived at, or owned, the property since 1984.

[5] The Applicants, Fiore and Stephanie De Francesca (“De Francesca”, and together with Galati and Schabla, the “Applicants”), own and seasonally reside at 320 Tiny Beaches Road South, Tiny Township (“Lot 97”). The De Francescas purchased their property in 2018.

[6] The Respondent, The Corporation of the Township of Tiny, is a municipality within Simcoe County in Ontario, Canada.

THE DISPUTED LANDS

[7] The Applicants own and reside in three cottages among a line of neighbouring lots on the waterfront of Georgian Bay in Tiny Township, Ontario (the “Cottage Lots”). The Cottage Lots are part of Registered Plan of Subdivision 776 (“Plan 776”) and are bordered to the north by Tiny Beaches Road South, to the south by Lake Huron, to the east by Marina Road, and to the west by Second Street.

[8] The Galati property is the first property west of Marina Road. The Schabla property is immediately west of the Galati property. The De Francesca property is two or three lots east of the Schabla property, and there are five or six more properties between the De Francesca property and Second Street. To the east of Marina Road is Jackson Beach Park.

[9] Between the boundary monuments immediately to the south of the Cottage Lots and Lake Huron, lies an expanse of land (the “Beach Lands”). The northern part of the Beach Lands is covered in grass (“Grassy Area”), and the southern part of the Beach Lands is a sand beach (“Sandy Beach”). Ownership of the Grassy Area informs this dispute.

[10] In 1931 the Beach Lands were dedicated to the public by the original owners of the lands depicted on Plan 776, Octave Pilon and William Clute, by way of a dedication inscribed on the face of Plan 776. The text of the dedication depicts that “[a]ll streets and lanes” and “all such portions of lots 18 and 19[^1] aforesaid shewn as beach” were dedicated to public use.

POSTIONS OF THE PARTIES

The Applicants

[11] The Applicants submit that while the Respondent accepted the dedication of the streets and lands in 1931, the Respondent failed to accept the dedication of the “portions shewn as beach.” In failing to do so, the Respondent cannot now claim it owns the Beach Lands.

[12] The Applicants submit that they and their predecessors in title have enjoyed exclusive possession and use of the Grassy Area in front of their respective Cottage Lots. They have erected signs putting the public on notice that the Grassy Area was not accessible to the public. If a member of the public did venture on to the Grassy Area, they were told it was private property and asked to leave.

[13] Galati and the De Francescas have always paid property tax levied on both their cottage lots and the Grassy Area.

[14] The Applicants built fire-pits on the Grassy Area, which have been fixtures since the 1980s at the latest, but possibly as early as the 1940s. The fire-pits were large, built with heavy stacked stone and visible in satellite imagery of the Beach Lands.

[15] This is not the first time ownership of the Beach Lands has raised its head. In 1996 the Respondent asserted ownership via letter to Galati, asking that she remove the firepit as it was on the Respondent’s land. When Galati objected, the Respondent withdrew its complaint.

[16] In 1999 the Respondent filed a Notice of Claim in respect of the Beach Lands. Around the same time, during a public meeting, the Respondent advised that it was claiming ownership of the Beach Lands. Galati objected by way of a letter to the Respondent. While the Respondent took no steps to develop the Beach Lands, it did begin to develop Jackson Beach Park.

[17] In 2009 the Respondent wrote to Galati, Schablas, and the predecessor owners of the De Francesca property, notifying them of the Respondent’s ownership of the Beach Lands. At this time the Respondent also began exhibiting signs of ownership over the Beach Lands, including ploughing the Sandy Beach, a task which the Applicants and the predecessors in title had previously undertaken, since the 1980s.

[18] In 2019 the Respondent passed a new Parks and Recreation Master Plan, signifying its intention to develop the Beach Lands.

[19] From 2019 onward, the Respondent tagged and removed the Applicants’ long-established fire-pits with heavy machinery, and, in 2020, for the first time known in history, it placed boundary markers along the southern boundaries of the Cottage Lots (demarcating where the Applicants’ property ended and where the Respondent’s property began – at the Grassy Area). The Respondent has also been dredging sand to create an artificial beach in front of the Sandy Beach.

[20] Matters appear to have reached an impasse:

• each time the Respondent has removed a fire-pit from the Galati or De Francesca property, it has been rebuilt by the property owner (while the Schabla fire-pit has also been removed, it has not been reconstructed); and

• when the De Francescas removed the boundary marker post, the Respondent sent in By-Law Enforcement and the OPP.

The Respondent

[21] The Respondent concedes that there is no formal acceptance of the Beach Lands on the face of Plan 776, or through any by-law located by the parties. However, the Respondent submits that (a) it consented to the registration of Plan 776; and (b) its consistent intervening actions since that time demonstrate its acceptance of the dedication, thereby perfecting its ownership of the Beach Lands for use by the public.

[22] The preservation of municipally owned land is regarded by the legislature as imbued with special public significance. Property that is owned by a municipality is held by way of a qualified title for public benefit, and the interests of fairness and justice require that no one or two individuals should be allowed to deprive others of said benefit.

[23] Finally, the Respondent submits that the Applicants do not claim any ownership interest in the Beach Lands. While they state in their factum that they intend to claim adverse possession, they have not yet done so given their inability to locate the estate of the original subdividers (Pilon and Clute). Accordingly, the remedy sought by the Applicants is unknown at law.

[24] In 2012 the Respondent passed By-Law 12-032, to protect, prohibit and regulate and control all public parks in the Township of Tiny. Parks is defined as “all land owned or operated by or belonging to the Township of Tiny used for park or recreational purposes…”

[25] Paragraph 7.1 of By-Law 12-032 is of direct consequence to the matter at hand, prohibiting as it does anyone from building or maintaining a fire-pit on the Respondent’s property. The Applicants believe this aspect of By-Law 12-032 does not apply to them, as the Grassy Area is not owned by the Respondent. The Respondent is of the opposite view.

[26] It appears the Respondent’s main concern is its potential liability should anyone be injured if the fire-pits remain on the Grassy Area. In support, the Respondent relies on two newspaper articles from Toronto, where two members of the public were injured by illegal fire-pits.

DISCUSSION

[27] The only issue to be determined by this court is whether the Applicants have satisfied the test for an interim injunction. The leading authority in respect of injunctions remains RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

[28] RJR-MacDonald provides the following three-part test which must be met:

a) Is there a serious issue to be tried;

b) Will the applicant suffer irreparable harm if the injunction is not granted; and

c) Where does the balance of convenience lie?

Serious Issue

[29] In RJR-MacDonald, the Supreme Court held that a “serious issue to be tried” is a low threshold, and this aspect of the test is satisfied as long as the action is neither frivolous nor vexatious.

[30] Who rightfully owns the Grassy Area? The Respondent submits possession of the Grassy Area cannot be claimed in the absence of an ownership right. Further, the Applicants’ claim in trespass cannot stand, given that they have no lawful possessory status such as a lease, a license, or even simple permission from the owner.

[31] On the other hand, the Applicants have demonstrated exclusive and undisturbed possession of the Grassy Area for upwards of 80 years. There is judicial support for their argument that trespass exists where a defendant interferes with a plaintiff’s possession of property. For example, in Patterson v. De Smit, 1949 CanLII 308 (ON CA), [1949] 3 D.L.R. 178 (Ont. CA), the Ontario Court of Appeal awarded damages for trespass to a plaintiff who had no title, on the basis that the plaintiff had a better claim to de facto possession of the subject lands than the defendant, also with no title, but who owned a neighbouring parcel of land.

[32] I do not find the Applicants’ claim to be either frivolous or vexatious. There is a serious issue to be tried in respect of ownership of the Grassy Area, and the first branch of the test is met.

Irreparable Harm

[33] Turning to the second step of the RJR-MacDonald test, the Applicants must prove they will suffer irreparable harm if the injunction is not granted. “Irreparable” refers to the nature of the harm suffered, rather than its magnitude.

[34] What is the nature of the harm the Applicants will suffer if the injunction is not granted? Galati and the De Francescas will be forced to remove their fire-pits. This seems innocuous enough, as they are permitted to rebuild the fire-pits within their own property boundaries. They will still have unfettered access to the Grassy Area and the Sandy Beach, but they can no longer treat the Grassy Area as their own.

[35] However, the Respondent’s interference with their use of the Grassy Area has affected the Applicants’ enjoyment of their property. With the presence of heavy equipment, Township employees, By-Law Enforcement officers, and the OPP, one can easily posit how a trip to the cottage might have lost some of its lustre.

[36] The Respondent submits that its presence on the Beach Lands, cutting grass and enforcing its by-laws, will not cause the Applicants harm. On the other hand, if the injunction is declined, there was evidence before this court that the Respondent intends to remove the Grassy Area completely. Should this come to pass, and ownership of the Grassy Area is ultimately found to reside with the Applicants, the environmental impact could result in the loss of a natural resource.

[37] There is no definition of “irreparable harm” and each case is to be decided on its own facts. As found in Justice Sharpe’s text, Injunctions and Specific Performance:

In the context of preliminary relief, the test is a relative and flexible one which, it is submitted, necessarily involves an evaluation of the other factors. Indeed, it has been held that an interlocutory injunction may be granted even where “irreparable” harm has not been demonstrated.

Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thomson Reuters, 2019) (loose-leaf revision 28), ch. 2, at s. 2.450.

[38] While not at the higher end of the harm contemplated by our courts, I am satisfied that the Applicants will suffer irreparable harm should their motion fail.

Balance of Convenience

[39] Which of the two parties will suffer the greater harm if the interlocutory injunction is granted or refused? Put another way, does the benefit the Applicants will gain if the injunction is granted, outweigh the inconvenience to the Respondent if the motion fails?

[40] The Respondent submits that the court should not discourage it from taking steps to limit its liability. Again, concern is expressed over the fire-pits and potential injury to the public. With respect, this is a hollow argument. The uncontradicted evidence from the Applicants is that fire-pits have been in use on the Grassy Area for many years, with no reported injury to the public.

[41] If the potential for injury was truly of concern to the Respondent, it would have taken steps to remediate the problem already – it has had the authority to do so under By-Law 12-032 since 2012. Further, the Applicants have undertaken to pay any damages arising from the injunction, if granted, thereby addressing the Respondent’s liability worries.

[42] The Respondent has nothing to lose by waiting and the Applicants will be permitted to continue using their properties as they have in decades past.

CONCLUSION

[43] The Grassy Area has existed undisturbed in its current state for the better part of a century. I see no merit to any solution other than maintaining the status quo until its ownership is determined. This will also help to curtail the current impasse between the parties, which appears to be escalating.

[44] The balance of convenience weighs strongly in favour of the Applicants, and is not offset by any irreparable harm the Respondent may suffer if the injunction is granted.

[45] Accordingly, the Applicants’ motion for an interlocutory injunction is granted. The order shall provide that the Respondent, and any third parties at its direction, as well as anyone having notice or knowledge of this court’s order, be prohibited and enjoined from trespassing over or interfering with the Applicants’ enjoyment and use of the Grassy Area until the final disposition of this proceeding or other order of the court.

COSTS

[46] If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Applicants, followed by responding submissions by the Respondent, then reply submissions from the Applicants, if any, commencing 14 days from the date of release of these reasons. Cost submissions shall be no more than 3 pages in length, exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant, Jennifer Beattie, at jennifer.beattie@ontario.ca.

[47] If no submissions are received within 21 days from the above date, the issue of costs will be deemed to have been settled between the parties.

Casullo J.

Released: October 22, 2020

[^1]: Prior to subdivision, this area was known as “Part of Lot 19 and broken Lot 18 on Concession 8, Tiny Township.