Varajao v Chiarotto, 2020 ONSC 6646

COURT FILE NO.: CV-20-00642164-0000

DATE: 20201102

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL VARAJAO Plaintiff / Defendant by Counterclaim

– and –

TESSA CHIAROTTO by her power of attorney CESARE CHIAROTTO, and CESARE CHIAROTTO Defendants / Plaintiffs by Counterclaim

Scott A. Rosen, lawyer for the Plaintiff/Defendant by counterclaim Michael Varajao

Flavio J. Battiston, lawyer for the Defendants/Plaintiffs by Counterclaim

HEARD: IN WRITING

G. DOW, J.

REASONS FOR DECISION

1This motion, made in writing, was referred to me and included a request at paragraph 2 of the plaintiff-moving party’s Reply Factum for an oral hearing of 90 minutes. This was despite the plaintiff-moving party’s completion of the Request to Schedule Form wherein counsel proposed the matter proceed in writing, to which the defendants-responding parties agreed.

2I decline that request given my confidence in being able to determine the matter without oral argument, the urgency of the moving party’s claims as presented and the result I have reached.

3The plaintiff, Michael Varajao seeks an interim interlocutory order permitting him to access the southern portion of the defendant’s Tessa Chiarotto’s property to install “necessary brick work, and/or related masonry” (see page 2 of the Notice of Motion) to the north wall of a new residential home under construction on his property prior to the winter. This is to avoid weather damage to the existing structure. This will apparently necessitate removal of a wooden fence Tessa Chiarotto, by her son and power of attorney, Cesare Chiarotto, installed since construction began.

4The action (and counterclaim) for damages includes disputes over the location of the property line and on whose property the fence is located. Michael Varajao also seeks an order restraining the Chiarottos or their agents or representatives from harassing Michael Varajao or his construction trades while construction is completed.

5A Statement of Claim issued June 8, 2020 seeks this relief pleading damages for “trespass to property, nuisance, interference with economic relations” as well as punitive damages. The Statement of Defence and Counterclaim seeks damages for “breach of contract, trespass, negligence and breach of duty”. Both claims seek damages in the amount of $1 million or greater.

Background

6For my purposes, in determining this matter, I note the parties are “neighbours”. More precisely, Michael Varajao owns the land at 450 Harvie Avenue, Toronto and he is in the midst of rebuilding the residential home on that property. As indicated, the defendant, Tessa Chiarotto is the registered owner of the adjacent property to the north, 452 Harvie Avenue. Tessa Chiarotto is described as 98 years young and has not lived in the house on the property since April, 2015. It is occupied by tenants, a family of three, whom Tessa Chiarotto, through her son, has deposed have lived there since 2017.

7In 2015, Michael Varajao sought to rebuild the residential property at 450 Harvie Avenue on such a larger scale that Committee of Adjustment Approval for variances was required and obtained. Cesare Chiarotto appealed that decision to the Ontario Municipal Board. There is a July 14, 2016 decision of the Ontario Municipal Board which noted the existing bungalow at 452 Harvie Avenue was only .04 meters from the Chiarotto property line. The new house, while three stories tall, would actually be further from the Chiarotto property with no encroachment on the Chiarotto property by such things as eavestroughs over hanging or air conditioning units.

8It should be noted that the space between the two houses is quite narrow, about .84 meters (at paragraph 44 of Cesare Chiarotto’s affidavit sworn September 11, 2020). The Ontario Municipal Board decision noted (at paragraph 20) the area is “characterized by narrow lots” and the side-yards are “compatible with the neighbourhood”. The Ontario Municipal Board concluded the variances should be allowed.

9There is also what is described as a “Settlement Agreement” dated March 28, 2016 which Michael Varajao says he accepted June 24, 2016 (at paragraph 12 of his affidavit sworn September 4, 2020). Both parties have referred to that document in support of their position.

10That document provides, at Clause [3]3. that during construction, the “walkway in the southerly side yard on the property of 452 Harvie Ave. is to remain intact and undisturbed”. However, much of the Chiarotto’s evidence detailed how the Chiarotto’s property including the walkway and foundation were disturbed as part of excavation for the new foundation at 450 Harvie Avenue in December 2018. Issues have arisen as to the lack of proper shoring and improper backfilling.

11Michael Varajao admits removing a chain link fence between the two homes erected by the Chiarottos (at paragraph 17 of his affidavit sworn September 4, 2020) claiming it was on his property and “necessary to do our excavation once we had the permits”. Michael Varajao tendered evidence of Cesare Chiarotto’s relentless harassment of his efforts to obtain the necessary variances and to build this residential property in which he and his family plan to live. This has included complaints to the City of Toronto, building inspectors, the police, and verbal threats to workers on the 450 Harvie Avenue property.

12The Settlement Agreement goes on in Clause [3]3. that Michael Varajao, as the owner of 450 Harvie Avenue “his contractors and licensees will be permitted to enter onto 452 Harvie Avenue or the southerly side yard of 452 Harvie Avenue with any scaffolding, building materials, tools” and “make good and repair any damages to 452 Harvie Avenue caused by the construction”.

Analysis

13The legal test for interlocutory injunctive relief is well known and from RJR – Macdonald Inc. v. Canada Attorney General, 1994 CanLII 117 (SCC), [1994] 1 SCR 311. It requires answers to whether:

i) there is a serious issue to be tried;

ii) will the applicant suffer irreparable harm if the injunction is not granted; and

iii) where does the balance of convenience lie pending determination of the issues before the court.

14Regarding the first part of the test, it is clear the parties have a dispute about the location of the property line and what has occurred. As noted in the Chiarotto’s factum (at paragraph 8(a)) there are surveys which vary the frontage of the Varajao from 7.26 meters to 7.62 meters. Each side has retained and tendered experts in support of their position whether they be surveyors, planners or engineers.

15Both parties have claimed damages against the other in a significant amount. I conclude Michael Varajao has met this first part of the applicable test.

16Regarding whether irreparable harm will occur if the injunctive relief is not granted, it also is clear the structure at 450 Harvie Avenue was built in a manner that contemplated the exterior or the north side of the structure be applied by utilizing Clause [3]3. of the Settlement Agreement. That is, temporarily placing scaffolding in between the structures and onto the southern portion of the property of 452 Harvie Avenue. Any damage resulting from that part of the construction and completion of the structure on 450 Harvie Avenue can be determined at the trial and damages assessed.

17It is also clear that from photographs, the exterior of the structure on 450 Harvie Avenue and specifically the north side of that structure is not yet completed in a manner that protects it from the elements of the seasonal weather which occurs in Toronto.

18The Chiarottos submitted Michael Varajao represented to the Ontario Municipal Board he did not need to trespass onto the Chiarotto’s property (presumably paragraph 17 of that decision). The decision actually uses the word “encroachment” and that the new structure increases the setback from the property line such that attachments to the structures such as eavestroughs would not overhang onto or into the airspace of 452 Harvie Avenue. I reject these submissions by the Chiarottos that Michael Varajao should have designed or constructed the house differently. I may have concluded otherwise in the absence of the Settlement Agreement which was reached before construction began.

19I also disagree with the submissions by the Chiarottos that the conduct of Michael Varajao, in ignoring Municipal orders, failing to erect proper shoring, damaging footings and destroying a fence permits the Chiarottos to not abide by or “are no longer obliged to permit access onto our property (at paragraph 38(a) of the affidavit of Cesare Chiarotto sworn September 10, 2020), Clause [3]3. of the Settlement Agreement they signed binds them to allow access. These are issues for trial and the assessment of damages. I conclude, based on the evidence, and despite poor conduct by each side as alleged by the other, Michael Varajao has met this second part of the test.

20Regarding the balance of convenience pending determination of the issues before the court, given the large quantum of damages pleaded and alleged to have occurred (which are disputed), I find, by comparison, little additional damage will occur by the temporary placement of scaffolding between the buildings to facilitate completion of the exterior brick work. Further, compensation for such additional damages are most appropriately dealt with as part of the assessment of damages to be determined at the trial.

21As part of determining this issue, I note Clause [3]3. also required Michael Varajao to provide a “constructors/builder’s liability insurance for $1,000,000, to the owners of 452 Harvie Ave.” and “make good and repair any damages to 452 Harvie Ave. caused by the construction”. It was not clear from the materials that such has occurred. It will be part of my order as a condition precedent to the placement of any object or entry by any person onto of 452 Harvie Avenue by Michael Varajao that a copy of the policy and declaration page confirming it is in force be produced and delivered to counsel for the Chiarottos if same has not already occurred.

22The material also did not address how long Michael Varajao requires access to the southern most portion of 452 Harvie Avenue to complete the brick work aside from the need to do the work urgently and in advance of winter to avoid damage to the existing structure. To that end, I would expect the work can be completed on or before December 31, 2020 subject to extenuating circumstances. Should same occur, any extension to be sought shall be on notice to the other side and made before me. This is subject to the consent of the parties to proceed in a different manner

23The material also did not address details of the likely removal of the fence before the brick work would begin. I have concluded 3 days is sufficient and, its replacement, if required, also be added to the issues for determination at trial given the dispute as to the location of the property line. This is also subject to the consent of the parties to proceed in a different manner.

Order Granted

24I make the following order:

1. If not already served, Michael Varajao shall deliver to counsel for the Chiarottos, a copy of the declaration page and policy providing constructor/builder’s liability insurance for $1 million and confirming that it is force;

2. Michael Varajao is granted an interim, interlocutory order to December 31, 2020 permitting him, his contractor, construction trades and their employees to access the southern portion of the 452 Harvie Avenue property from two meters to the east and two meters to the west of the existing structure at 450 Harvie Avenue, solely for the purpose of installing necessary brick work, and/or stone work, and/or related masonry to the north wall of the existing structure at 450 Harvie Avenue;

3. Michael Varajao or his contractor, construction trades and their employees shall be permitted to remove the Chiarotto’s fence, if necessary, between the properties not more than 3 days before gaining access to the above described portion of the property with its replacement or damages added to the issues to be determined at trial (or on consent);

4. The Chiarottos and any of their agents, employees, or representatives shall not harass Michael Varajao, his contractor, construction trades or other employees pending this matter being determined at trial (or by resolution between themselves); and

5. Any variation or extension of this Order shall be made on notice to the other side and returnable before me.

Costs

25Neither parties submitted a Costs Outline as required by Rule 57.01(6) despite each party requesting costs. To that end, I am exercising the discretion of afforded to me under Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. Costs are to be fixed at the scale and in the amount to be determined by the trial judge.