COURT FILE NO. 117/14
DATE: 20200131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan Sutcliffe and 1641479 Ontario Inc.
Plaintiffs
– and –
Kevin Kerr
Defendant
Wylita Clark, for the plaintiffs
Scott Seabrooke, for the defendant
Heard: May 23, 24, 29, 31, 2019
Bale J.:
[1] Kevin Kerr is a farmer. Ryan Sutcliffe owns a 50-acre parcel of land to the east of the north half of the Kerr farm. Title to the Sutcliffe parcel includes a right-of-way over the farm.
[2] In November 2013, an altercation between Kerr and Sutcliffe occurred on the right-of-way, leading to the commencement of this action in September 2014. For the reasons that follow, the action is dismissed.
Background facts
[3] The Kerr farm consists of 100 acres described as the west half of Lot 8, Concession 9, Geographic Township of Manvers, City of Kawartha Lakes. Title to the farm is subject to a right-of-way, as described below. The farm had been passed down from Kevin Kerr’s great-grandfather Robert Kerr, to his grandfather George Kerr, and then to his parents Bruce and Frances Kerr, and finally to Kevin and his three brothers. He has been the sole owner of the property since April 2012 when he bought out his brothers’ interests.
[4] George Kerr had purchased an additional 50 acres described as the north-west corner of Lot 8, Concession 9, in the Township of Manvers which he left to his other son, Neal Kerr. Upon his death, Neal left the property to his nephew Gary Kerr. Gary sold interests in the property to some others, and in July 2008, he and those others sold the property to Ryan Sutcliffe. Title to this 50-acre parcel includes a right-of-way over the easterly 30 feet of the Kerr farm, from Highway 7A to the south, “for purposes of ingress and egress.” This parcel is vacant land and up until the transfer to Sutcliffe, was used for hunting and as a wood lot.
[5] In March 2005 (prior to his purchase of the 50-acre parcel), Ryan Sutcliffe purchased a 200-acre parcel lying to the north of the Kerr farm and the 50-acre parcel, in trust for a company to be incorporated, and in April 2005, title to the 200 acres was registered in the name of 1641479 Ontario Inc. This property was purchased from third parties and title to the property does not include a right-of-way over the Kerr farm. It is separated from the Kerr farm and the 50-acre parcel by the road allowance between concessions 9 and 10.
[6] An altercation between Kevin Kerr and Ryan Sutcliffe occurred in November 2013. The following is Mr. Kerr’s description of the event. He had seen someone dumping sand on the right-of-way and had asked what he was doing. The person told him that Mr. Sutcliffe had instructed him to dump the sand, and that Sutcliffe was back in the bush. Kerr then drove along the right-of-way to the point where there was a gate leading onto the 50-acre parcel and waited for Sutcliffe. While waiting, he turned his truck around and was facing south down the right-of-way. Sutcliffe eventually appeared in his rear-view mirror driving an earth-mover which Kerr described as 16 to 18 feet long and 25 tons, “caterpillar-type machinery.” Sutcliffe got out of the earth-mover and approached Kerr’s truck. Kerr suggested that they should talk about what was going on, but Sutcliffe just uttered a bunch of threats and said that if Kerr did not move, he would ram him. Before Kerr could move, Sutcliffe rammed his truck with the earth-mover causing over $5,000 in damages.
[7] I accept Mr. Kerr’s description of this event. It was corroborated by his mother who had witnessed it. Ryan Sutcliffe was present in court but did not testify.
[8] In the statement of claim by which this action was commenced, Mr. Sutcliffe and the numbered company alleged that “they” have an easement over the defendant’s property for ingress and egress to “their lands”; and that Mr. Kerr had tried to block them from placing sand on the right-of-way by placing a pickup truck across it. They claimed a declaration that they are entitled to use the right-of-way, an injunction prohibiting Mr. Kerr from interfering with their use of the right-of-way, and damages of $50,000 for interference with their use and enjoyment of their property. Based solely upon the pleadings and the evidence of Mr. Kerr and his mother concerning the November 2013 incident, I would have had no difficulty dismissing the action: Mr. Kerr was entitled to use the right-of-way and he parked where he did because he wanted to discuss the situation with Mr. Sutcliffe, not in order to interfere with Sutcliffe’s use and enjoyment of his property.
[9] However, during the trial, plaintiffs’ counsel produced a new claim for relief in which the following orders were requested:
- a declaration that the plaintiff Ryan Sutcliffe has the right to use the easterly 30 feet of the defendant’s property to access his property;
- a declaration that the plaintiff may make alterations to the defendant’s lands on the right-of-way as are reasonably necessary for year-round vehicular access over the right-of-way;
- a declaration that the defendant shall not interfere with the plaintiff’s use of the right-of-way;
- a declaration that the defendant shall remove the gates across the right-of-way;
- a declaration that the defendant shall not allow cattle on the right-of-way;
- a declaration that the defendant shall remove snow from the right-of-way and shall fill holes in the right-of-way at his expense. Should the defendant fail to maintain the right-of-way, the plaintiff may do so; and
- a declaration that the plaintiff may enter the 200 acres from the 50 acres.
Declaratory orders
[10] The following summary of the availability of declaratory orders is from Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis Canada, 2017), at paras. 4.407 to 4.409:
¶4.407 … A party seeking declaratory relief must have standing which means that there must be both: (1) a dispute between the parties; and (2) a sufficient level of legal privity between the parties, which is to say that the litigant seeking a declaration must show that he or she has a right that has been infringed or requires protection from the other party.
¶4.408 … The court's discretion to make a declaration should be exercised sparingly and with extreme caution. As a general policy or practice the court will not make a declaratory order or decide a case when the decision will serve no practical purpose because the dispute is theoretical, hypothetical or abstract, and the remedy of declaratory relief is not generally available where the dispute or legal right may never arise.
¶4.409 Although the court has the power to declare rights for the future on the happening of a contingency, that power should be carefully exercised and used only when a present right depends on the decision or there are some other special circumstances that will make the declaration definite and useful. Being a discretionary remedy, the Court will withhold the exercise of its discretion to grant a declaration in circumstances in which a declaration cannot meaningfully be acted upon by parties; a declaration must have some utility. For a declaration to be granted, there must be a real and not a hypothetical dispute between the parties and the declaration must be capable of having a practical effect in resolving the dispute. (Footnotes omitted).
Analysis
[11] Ryan Sutcliffe’s son, Donald Sutcliffe, testified upon behalf of the plaintiffs. In his evidence, he said that their intention was to improve the property, and then re-sell it. He said that they would like to join the 50-acre parcel to the 200-acre parcel and build a cabin or single-family home. In order to do that, he said, they would have to build a roadway along the right-of-way, sufficient to obtain an occupancy permit.
[12] However, the difficulty is that as the evidence unfolded, it became clear that the plaintiffs had not done their homework. The 50-acre parcel is a “Provincially Significant Wetland” (PSW). Pursuant to paragraph 3.5.4 of the City of Kawartha Lakes Official Plan, development and site alteration are not permitted in PSWs, and pursuant to paragraph 3.5.5, an Environmental Impact Study is required for development within a 120-metre buffer zone surrounding a PSW.[^1] The difficulty with this situation is that without knowing the use to be made of the 50-acre parcel, the ancillary rights to which Mr. Sutcliffe may be entitled are difficult to determine.
[13] In my view, the plaintiffs should not have come before the court requesting declaratory relief, before determining what use could be made of the 50-acre parcel. Before involving the defendant in litigation, they ought to have obtained municipal approval for the proposed development.
[14] Plaintiffs’ counsel relies upon West High Development Ltd. v. Veeraraghaven, 2011 ONSC 1177. In that case, the owner of the dominant tenement wanted to alter the topography of the right-of-way in order to provide vehicular access to parking at the rear of his building. The primary issue was whether the permissible use of the right-of-way was restricted to pedestrian traffic or extended to vehicular traffic. Plaintiffs’ counsel points out that in West High, the owner of the dominant tenement had not obtained municipal approval for the required alterations and says that the case is therefore similar to the present case. I disagree. In West High, unlike the present case, the additional use to be made of the dominant tenement was known (tenant parking). It was clear that in order to accommodate such parking, alterations to the right-of-way were required. The questions before the court were not hypothetical.
[15] The following are my reasons for dismissing the action, as they relate to each of the requested declaratory orders.
Declaration that Ryan Sutcliffe has the right to use the right-of-way to access his property
Declaration that the defendant shall not interfere with the plaintiff’s use of the right-of-way
[16] The difficulty with these requests for relief is that Mr. Sutcliffe’s right to use the right-of-way has never been in dispute and there is no evidence that Mr. Kerr has interfered with such use. While there may be potential for a dispute in the unlikely event that Sutcliffe obtains permission to develop the property at some future time, such a dispute is, at this time, hypothetical and unlikely to arise. I also note that second of the two requests for relief is injunctive rather than declaratory.
Declaration that Ryan Sutcliffe may make alterations to the right-of-way necessary for year-round vehicular access over the right-of-way
[17] The difficulty with this request is that the necessity of any alterations to the right-of-way will depend in large part on the use to be made of the 50 acres. Mr. Kerr and his mother testified that they use the right-of-way year-round, and when asked what difficulties he had experienced, Donald Sutcliffe said that once, he had to put his truck into four-wheel drive. Based upon the present use of the property, I see no need for any alterations to the right-of-way. Again, while there may be potential for a dispute over required alterations in the unlikely event that Sutcliffe obtains permission to develop the property at some future time, such a dispute is, at this time, hypothetical and unlikely to arise.
Declaration that the defendant shall remove the gates across the right-of-way
Declaration that the defendant shall not allow cattle on the right-of-way
[18] These requests for relief are injunctive rather than declaratory. In any event, the Kerr farm is … a farm. The gates prevent Mr. Kerr’s cattle from getting into crops or wandering off down the right-of-way. In Kozik v. Partridge, [2000] O.J. No. 3235 (S.C.J.), relied upon by the plaintiffs, the court ordered that the defendants remove four gates from the right-of-way, but allowed one gate to remain. In doing so, the court found that the defendants had been aware of the plaintiffs’ right-of-way before purchasing their farm and ought to have arranged their farming plans so as to not interfere with the plaintiffs’ usual use of the right-of-way established over the previous 72 years. In the present case, the situation is reversed. The gates were on the right-of-way at the time Mr. Sutcliffe purchased the 50 acres. More importantly, based upon the allowable uses of the property and the absence of evidence of the use being made of it by Sutcliffe, if any (other than for building a road between the 50-acre parcel and the 200-acre parcel), the gates are not a substantial burden entitling Mr. Sutcliffe to injunctive relief.
[19] With respect to cattle, Donald Sutcliffe’s evidence was that they will occasionally be on the right-of-way, but that if you honk the horn they will move off. The right-of-way is a trail across a farmer’s field to a parcel composed of bush and wetlands. For similar reasons to those relating to the gates, I do not find the occasional straying of cattle onto the right-of-way to be a substantial burden entitling Mr. Sutcliffe to injunctive relief.
Declaration that the defendant shall remove snow and fill holes in the right-of-way at his expense. Should the defendant fail to maintain the right-of-way, the plaintiff may do so
[20] The first part of this request for relief is again injunctive rather than declaratory, and plaintiffs’ counsel acknowledged in argument that the defendant is not required to maintain the right-of-way. With respect to the second part, Mr. Kerr does not dispute Mr. Sutcliffe’s entitlement to remove snow and fill holes or more generally, to maintain the right-of-way in its current state. What he has objected to is the dumping of sand and gravel on the right-of-way for the purpose of turning it into a roadway.
Declaration that the plaintiff may enter the 200 acres from the 50 acres
[21] The way this request for relief is phrased is ambiguous, but what the plaintiffs want to do is use the right-of-way to access the 200-acre parcel. This they are not entitled to do: Gordon v. Regan (1985), 1985 CanLII 2230 (ON SC), 49 O.R. (2d) 521 (H.C.J.), aff’d (1989), 1989 CanLII 4193 (ON CA), 71 O.R. (2d) 736 (C.A.). They say that they would be willing to put the two parcels into the same name and allow them to merge; however, even if this were possible (it would require the municipality to convey the road allowance to them), it would not entitle them to use the right-of-way to access the 200-acre parcel. The fact that the properties had merged for Planning Act purposes would not result in the right-of-way becoming appurtenant to the 200-acre parcel.
Disposition
[22] For the reasons given, the action is dismissed.
[23] If the parties are unable to agree on costs, I will consider brief written argument provided that it is delivered to the trial office no later than February 28, 2020.
“Bale J.”
Released: January 31, 2020
COURT FILE NO. 117/14
DATE: 20200131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan Sutcliffe and 1641479 Ontario Inc.
Plaintiffs
– and –
Kevin Kerr
Defendant
REASONS FOR JUDGMENT
Bale J.
Released: January 31, 2020
[^1]: Even if the parcel were not a PSW, the zoning of the property would prohibit the plaintiffs from building a residence because of the absence of “frontage and direct access onto an improved public street, assumed and maintained year-round, by the township, county or province.”