Court File and Parties

COURT FILE NO.: CV-20-75 DATE: 2021-02-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1604945 Ontario Inc. Plaintiff – and – Metrolinx Defendant

Counsel: Gregory Govedaris & Mathew Glowacki, Counsel for the Plaintiff Christel Higgs & Chantelle Dallas, Counsel for the Defendant

HEARD: February 4 and 8, 2021 The Honourable Justice James W. Sloan

REASONS FOR JUDGMENT

[1] The facts of this case appear to be quite different than those involved in what I might describe as a “standard” interlocutory injunction. This is in part, because there is federal and railway legislation affecting the subject land.

[2] This action arises out of the use of a “laneway” situated between two contiguous properties in the City of Kitchener. The plaintiff, who owns 283 Duke Street, claims to have a prescriptive easement over part of the property owned by Metrolinx. Metrolinx is a Crown Agency and owner of the subject property.

[3] Metrolinx is involved in a collaboration with the City of Kitchener and the Regional Municipality of Waterloo to improve public transit by connecting passengers to GO transit, light rail transit and VIA rail service. It is in the advanced planning stages for two large infrastructure projects known as the Park Street Layover Project and the Kitchener Transit Hub. Work on the projects was to have commenced in April 2021.

[4] Metrolinx wishes to use the subject property in the very near future to construct prefabricated rail systems for use on the Park Street Layover project.

[5] The plaintiff seeks an interlocutory injunction restraining Metrolinx from interfering with its use of a “laneway” on land owned by Metrolinx which runs between the two properties. In essence, the plaintiff submits the status quo should be maintained until the injunction can be heard.

[6] The other issues that came before me on February 4, 2021 have been dealt with in another endorsement dated February 4, 2021. These included issues concerned with a revised discovery plan, productions and better affidavits of documents and substituting a witness to be discovered.

[7] To assist with the hearing, the volumes of material filed in support of each party's position were labeled number V1 through V9.

[8] What I will refer to as the “laneway” is a strip of land approximately 7.3 metres wide, essentially running between Duke and Waterloo Streets. It runs along the entire length of the plaintiff’s property, including the building fronting on 283 Duke Street. There is a good picture of the area, and also where Metrolinx wants to install gates, at V1, TB-1, P26.

[9] The southerly wall of the 283 Duke Street building appears to have been built exactly on the lot line between the parties’ respective holdings.

[10] Along with two gates to restrict access, and for safety during construction, Metrolinx, in addition to wanting to install two gates, plans to install a fence within inches of the south wall of the subject building at 283 the Duke Street building.

[11] At some time in the near to medium future, the property will be used for a pedestrian platform after Metrolinx has finished constructing the prefabricated rail systems.

[12] Currently, some of the plaintiff’s tenants make use of the “laneway” to park and, for at least three tenants, to enter their leased premises through pedestrian doors on the south side of the building.

[13] 1858 -The Metrolinx property was originally conveyed to The Grand Trunk Railway Company of Canada (Grand Trunk).

[14] It appears that the original structure was designed for use by one manufacturing concern and later at some unknown date it was converted to a multiuse building with numerous tenants.

[15] January 30, 1923 - Grand Trunk changed its name to Canadian National Railway Company (CN Rail).

[16] February 27, 1979 - 283 Duke Street was purchased by Boehmer Paperboard.

[17] November 18, 2002 - the Metrolinx and Duke Street properties were converted to the Land Titles system.

[18] May 31, 2004 - the plaintiff purchased 283 Duke Street from Boehmer.

[19] September 4, 2014 - CN Rail conveyed the subject property to Metrolinx. No easements against the property were registered and none were identified by Metrolinx’s legal counsel on the date of transfer.

[20] On the date of transfer, counsel for Metrolinx identified an unauthorized use of the Metrolinx property by 283 Duke Street and referred to it as an encroachment.

The Plaintiff’s Position

[21] The plaintiff in part relies on s.101 of the CJA and r. 40.

[22] It is extremely difficult to read plan 58R–18215 dated May 22, 2014, which has been reproduced at V1, TB-1, P24 on a single 8.5 x 11” piece of paper. A slightly larger and more readable section of the R plan can be found in V7, Ex A, P9.

[23] The best picture of the disputed “laneway” is set out in the plaintiff’s factum dated January 22, 2021. (V3, TB-1, Para1) The portion highlighted in yellow is the “laneway” the plaintiff seeks an easement over.

[24] Since it purchased the building in 2004, the plaintiff claims it and its tenants have used the “laneway” for ingress, egress, parking and as a fire exit. If a fence were built right up against the building and if gates were installed at each end of the “laneway”, it would effectively cut off parking and entrance to the building from its south side. In addition, the pedestrian entrances, which would double as potential fire exits, would be affected.

[25] Although all tenants have access to their units through the front entrance on Duke Street by means of a hallway, the principal access for three of the units is from the south side of the building which borders the “laneway”.

[26] In addition, the only fire exit from the second floor of the building is by means of metal steps exiting the south side of the building. These metal steps protrude approximately 3 feet into the “laneway” and appear to be closer to the west end of the building.

[27] In the real estate reporting letter to Metrolinx, from their solicitors, Blakes, dated September 26, 2014, (V2, TB-8), Blakes, at page 3, lists seven qualifications to Metrolinx’s title. At the time this letter was written, Metrolinx and Blakes would have had the “R” plan showing the subject “laneway”. At page 6 of their reporting letter, Blakes wrote:

8. In the northerly half of Part 2 on the Plan there is a gravel road, a building, a concrete retaining wall, 2 nd story metal stairs, wooden stairs and concrete stairs encroaching onto part of Property 55. The most significant encroachment is of the gravel road, which is approximately 5.20 m/17.09 feet north of the centre line of the tracks. All other encroachments …

[28] The plaintiff pointed out that Blakes referred to the “laneway” as an “encroachment” not as a “laneway”. Metrolinx appears to rely on a Declaration of Possession from Ernie M. Longo (Manager Business Development and Real Estate of Canadian National Railway Company) to satisfy itself that there are no easements (i.e. the “laneway”) affecting the subject lands.

[29] At para. 7 of the Longo Declaration dated August 13, 2014, he declares:

7. I have never heard of any claim of easement affecting the said lands, either for light, drainage, or right of way or otherwise, with the exception of those easements and agreements registered against the title thereto (V2, TB-10, Para. 7)

It appears that the operative word in para. 7 is the word “heard” since the “laneway” could be easily seen by anyone who looked at the south side of the building.

[30] Blakes never said in their reporting letter that no one can never get an easement over railway lands.

[31] The plaintiff has maintained the gravel “laneway” for at least 16 years, including paving it with crushed asphalt and removing winter snow, etc.

[32] The plaintiff has appended numerous pictures/artist renditions in V2, TB-13 at pages 29-49. In general, they all show pictures of the subject area.

[33] The initial picture/artist’s rendition is from the 1897 “Busy Berlin Book” and depicts a pedestrian promenade on the south side of the subject building. Apparently, this building burned down, and when it was reconstructed around 1906 the south side of the building was built on the lot line eliminating the pedestrian promenade.

[34] The 1912 picture shows the building and some railcars, but it is difficult to see the “laneway” and there are no people or automobiles in the picture.

[35] The 1960 picture shows some automobiles on the eastern part of the “laneway”. What looks like a loading dock covers much of the westerly portion of what the plaintiff describes as a “laneway”. There appear to be multiple rail tracks closer to the building than currently exist. These spur lines were likely used to bring raw material to the building and take finished product to market.

[36] The 2019 picture shows the south side of the subject building, cars and what appears to be a few pedestrian doors accessing the south side of the building. The plaintiff submits that all of the photos show the subject area was used as a “laneway” for 120 years.

[37] In V2, TB-13, the plaintiff has appended, from various people in the Kitchener area, letters, affidavits and statements about the “laneway” being used for access since 1975.

[38] The picture at V1, TB-12 shows a fence that was erected by the plaintiff in 2012, part way between the railway tracks and the building. The fire escape servicing the second floor which is attached to, and protruding from, the south side of the building is also visible.

[39] The plaintiff queries, if Metrolinx actually needs the subject property for staging, why on January 10 and 14, 2020, would Metrolinx send emails asking if the plaintiff was interested in leasing the area for parking. (V1, 2 nd TA, P2, Paras. 8-10)

[40] Also, in their Statement of Defence and Counterclaim, Metrolinx makes no reference to: (a) the Park Street Layover, (b) the King Transit Hub, or (c) any Federal statutory defence.

[41] In the affidavit of documents signed by Netopilik, an engineer on behalf of Metrolinx, the documentation produced talks only about fencing, not the major projects referred to above. (V2, TB-5)

[42] The only affidavit filed by Metrolinx in its response material, is that of a conveyancer, Mr. Brown, who has no first-hand information about 283 Duke Street, aside from what he learned in the title search and what the engineer, Netopilik, told him. (V3, TB-1, P8, Para17)

[43] Currently, neither project is out for tender. Although Metrolinx submits it wants the property now so that it can prefabricate railway track for use at the Park Street Layover, there is no material to say they need it now, when they will need it or for how long they may need it, and whether they will ever need it for use for the Kitchener Transit Hub. In essence, no evidence has been filed with respect to either project.

[44] Despite claiming there would be significant cost increases if Metrolinx could not get use of the subject property to prefabricate the rail systems, their witness at discovery, Netopilik, could offer no evidence whatsoever about such a claim. (V3, TB-1, Para. 21)

[45] Although Netopilik did not make specific measurements for the turning radius of the trucks needed, he stated, based on his experience as an engineer, that Metrolinx would require full access from the railway track to the edge of the subject building to allow the long trucks to make large turns. (V3, TB-1, Para. 64)

[46] The plaintiff submits there is no engineering evidence about how much room is needed, however, at page 43 question 170 of Netopilik’s examination, he explained in some detail why a significant area is required. It is due to the large trucks, the standard rail length being 80 feet and room needed for a crane, boom truck or loader to offload and stockpile the rails, etc. In addition, Metrolinx would need room to pre-construct a track turnout panel or switch panel, etc.

[47] The plaintiff acknowledges that it cannot claim a prescriptive easement after the property is registered in Land Titles, however, it submits it had such a claim prior to the conversion. Its claim can be protected in one of three ways, under a Land Titles registration system, referred to as Land Titles Conversion Qualified (LTCQ), through adverse possession and proprietary estoppel.

[48] The plaintiff submits that if a person/entity has prescriptive rights on the day land is registered in Land Titles, such rights are preserved notwithstanding the conversion of the land into Land Titles. This is because of the hybrid Land Titles system referred to as Land Titles Conversion Qualified. (LTCQ). The claim is also protected under s. 51(2) of the LTA.

[49] To establish a prescriptive easement, the user must meet four essential characteristics of an easement at common law, namely: (a) there must be a dominant and servient tenement, (b) an easement must accommodate the dominant tenement, (c) the dominant and servient owners must be different persons; and (d) a right must be capable of forming the subject matter of a grant.

Lost Modern Grant

[50] The plaintiff submits that a pre-existing prescriptive right, established pursuant to the doctrine of Lost Modern Grant, will survive the registration of title under the LTA. The 20-year period to obtain such a prescriptive right does not have to be immediately preceding the bringing of the action. The plaintiff relies on several legal cases and texts as follows.

[51] The plaintiff relies in part on the case of Henderson et al. v. Volk et al., (1982), 35 O.R. (2 nd ) 379 where the court stated at pp. 382 – 83:

… The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made.

It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20 year period immediately preceding the bringing of an action.

Adverse Possession

[52] To be successful under this title, the claimant must establish the following over a ten-year period: (a) actual possession of the property in issue; (b) the intention of excluding the true owner from possession of his or her property; and (c) effective exclusion of the true owner from possession of his or her property.

[53] Adverse possession claims continue to exist where they were vested prior to the lands being converted to Land Titles. To claim adverse possession, the plaintiff would have to show such possession for 10 years prior to the conversion. In this case, from April 18, 1992 to November 18, 2002.

[54] The plaintiff submits it has provided evidence of continuous use of an easement over the “laneway” since 1896.

[55] The plaintiff submits that Metrolinx has filed no evidence to contradict this.

Proprietary Estoppel

[56] Proprietary Estoppel is all about equity and can be used to establish easement rights.

[57] In the case of Cowper-Smith v. Morgan, 2017 SCC 61 (SCC), based on the headnote at pp. 755-6, when trying to establish a cause of action based on proprietary estoppel, one must first establish an equity of the kind that proprietary estoppel protects. An equity arises when: (a) a representation or assurance is made to a claimant, on the basis of which the claimant expects he or she will enjoy some right or benefit over property; (b) the claimant relies on that expectation by doing or refraining from doing something, and his or her alliance is reasonable in all the circumstances, and (c) the claimant suffers a detriment as a result of this reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his or her word. Proprietary estoppel protects this equity, which in turn protects a reasonable reliance of the claimant. As with other estoppels, this doctrine operates to prevent the unfairness that would arise from allowing a party to renege and a promise and to insist on the enforcement of strict legal rights.

[58] Based on the above, the plaintiff submits there is a serious issue to be tried.

The Plaintiff’s Other Submissions on the Law

[59] The plaintiff submits that this hearing is not to determine which party will eventually be successful. Based on the Supreme Court of Canada decision in RJR-MacDonald Inc. v. Canada 1994 SCC 117, (paras. 54-55) the plaintiff submits it must pass a three part test to succeed in its motion seeking an interrogatory injunction as follows: (a) is there a serious question to be tried? (b) if the injunction is not granted, will the moving party suffer irreparable harm which cannot be adequately compensated for by damages? and (c) which party will suffer the greater harm from refusing or granting the remedy, pending a decision on the merits?

[60] Given the undisputed use made of the “laneway” by the owners and tenants of the 283 Duke Street property, there is a serious question to be tried, the plaintiff will suffer irreparable harm while the defendant is only going to make temporary use of the land.

[61] In the British Columbia Court of Appeal case of the Attorney General of British Columbia v. Wale, 1986 Carswell BC 413, the court stated the following at paras. 50 and 52:

50 … More difficult is the case where both parties demonstrate that damages might not be an adequate remedy – the applicant if no injunction is granted, the respondent if an injunction goes... One factor which may assist the court in assessing where the balance of convenience lies when the parties’ interests are relatively evenly balanced is the fact that one side bases his claim on existing rights, while enforcement of the other’s rights would change the status quo. To put it another way, where the only effect of an injunction is to postpone the date upon which a person is able to embark on a course of action not previously open to him, it is a counsel of prudence to preserve the status quo…

52 … The terms “irreparable harm”, “status quo”, “balance of convenience” do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case. More importantly, they ought not to be seen as separate, watertight categories.

[62] The plaintiff submits no evidence has been tendered by Metrolinx and if the issue before the court was so important to it, it would have been the moving party.

[63] In the case of 459103 Ontario Ltd. v. Metropolitan Toronto Condominium Corp. No 677, 1999, CarswellOnt 2088, the court, at para. 6 approved of the following passage of Robert Sharpe from the text “Injunctions and Specific Performance”:

Under our system of law, property rights are sacrosanct. F or that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.

[64] In the case of Hamilton (City) v. Loucks 2003 CarswellOnt 3660, the court stated at paras. 34, 35 and 36:

34 … Justice O’Leary, in considering the issue of civil disobedience as well as the issue of interference with the plaintiff’s property rights, wrote the following at page 3:

The defendants have no right to interfere with the construction of the road yet they are doing just that. Only at its peril will our society allow anyone to flout the law. The Attorney General as protector of public rights and the custodian of the public interest is entitled to seek an injunction against those flouting the law. In such a case, the Attorney General does not have to show that the repairable harm would result if the injunction is not granted.

35 Therefore, if any of the three aforementioned factors are present, the traditional test for interlocutory injunctions as set out in the RJR-MacDonald case should be modified, so that there is a strong emphasis placed on the first criteria that requires a plaintiff to prove that there is a serious question to be tried. In such a case, there is no need for the plaintiff to prove that it will suffer irreparable harm and there is no need to consider the balance of convenience.

36 I therefore conclude that where a plaintiff requested an interlocutory injunction to prohibit interference with the plaintiff’s property rights, or to enforce a municipal bylaw, or to restrain civil disobedience, if that plaintiff can prove that there is a serious question to be tried, then the injunction should be granted unless there are exceptional circumstances.

[65] The plaintiff also relies on the case of Rebuilt Resources Skills Development Inc. v. Hotte Construction Inc. [2004], CarswellOnt 1224 where the court stated at para. 13:

[13] The Plaintiff and previous owners have had free and uninterrupted use of the area in question for over 40 years. The Plaintiff has also maintained the road with gravel in the summer and snow removal in the winter. The Plaintiff has no other way of access to his loading docks. The Defendant contends that removal of a portable on the Plaintiff’s land and adjacent to the business building would solve the building. A review of the photographs at Tab S and W in the Defendants Motion Record does not satisfy me that such is the case. The trial judge would be in a better position to determine this issue. I am satisfied that blocking access to the Plaintiff’s landing docks is a serious issue to be tried. The blocking of access which has previously been permitted for over 40 years is a substantial issue and it would be impossible to calculate the damages caused to the Plaintiff. The balance of convenience favours the Plaintiff in that an injunction to Trial causes no irreparable harm to the defendant and/or his land.

[66] The plaintiff submits that in matters involving property rights it is unnecessary for the moving party to prove irreparable harm or a balance of convenience. In such cases, the courts evaluate the request for an injunction on the basis that injunctive relief is presumed to be the most appropriate. In support of this it has quoted from Robert Sharpe’s text Injunctions and Specific Performance where the learned author stated at para. 4.10:

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass. It is also the case where the plaintiff’s cause of action lies in nuisance, although somewhat less categorically. The discretion in this area has been crystallized to the point that, in practical terms, the conventional primacy of common law damages over equitable relief is reversed. Where property rights are concerned it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy. However, as always with equity, this must be understood to be a principal rather than a rule and, as will be seen, many factors are taken into account.

[67] In the case of Sciara v. Szpakowski, 2014 ONSC 2157, the court commented on the fact that the respondent had not filed responding affidavit evidence. The court stated the following at para. 9:

[9] Since the Respondent did not file any responding affidavit evidence, the affidavit evidence led by the Applicant is, for the purpose of determining whether an interim injunction should be granted, to be considered undisputed. It is of course not my role in dealing with the request for an interim injunction to make a final determination of the merits of the application, and the Respondent is fully entitled to introduce whatever affidavit evidence he is advised to dispute the claims made by the Applicants. My only role is to determine what should happen with respect to the ability of the Applicants to continue to utilize the lane to access the rear of the property pending the determination of the issues in the Application on their merits.

[68] The plaintiff submits that the defendant first pled statutory defences in its factum dated December 3, 2020 and not in its statement of defence. Therefore, the plaintiff submits paras. 49 through 60 of the factum should be struck or given no weight.

[69] Alternatively, such a defence should be left to the trial of the matter and not be taken into account on this interim application.

Metrolinx’s Position

[70] Metrolinx owns the subject property. Since there is no room to prefabricate the necessary track near Park Street, the only other reasonable location to do it in Kitchener is on the subject property.

[71] The subject property will also be needed to facilitate the construction of The Kitchener Transit Hub.

[72] There is parking on the plaintiff’s property immediately to the west of the 283 Duke Street building, and also at the northwest corner of the 283 Duke Street building. All tenants have access to their tenements through the interior of the 283 Duke Street building. (V7, Ex. G, P29)

[73] Metrolinx owns Parts 1 - 8 on Plan 58R-18215 and the plan is to close Duke Street (Parts 3, 4 and 5 of the Plan), thereby doing away with a level crossing.

[74] When the Grand Trunk Railway Co. of Canada received its grant in 1859 it did not have the power to dispose of the property. (V7, Ex. C, P9) On January 30, 1923, the Grand Trunk and Canadian National Railways amalgamated under the name Canadian National Railway Company.

[75] On June 6, 1919, an Act to Incorporate Canadian National Railway Company and Respecting Canadian National Railways was assented to. Paragraph 18 reads as follows:

18 The works of any of the Companies comprised in the Canadian Northern System which have not heretofore been declared to be works for the general advantage of Canada are hereby declared to be works for the general advantage of Canada… (Canadian National Railways Act, SC 1919, c.13 – V9, T15)

[76] “The Canadian National Railway was the absolute owner of “Property 55”” and has been in actual, peaceable, etc. possession since on or about October 3, 1951… (para. 2 Longo affidavit V2, T10) Property 55 contains approximately 53 km. of track called the Guelph subdivision. The subject property forms part of Property 55.

[77] Since there is a process by which an interest in railway lands can be obtained, Longo can swear at para. 7 of his August 13, 2014, affidavit, that he had never heard of any claim of easement affecting the said lands, etc.

[78] On page 6 of the Blakes letter, at items 8 through 16, all Blakes is doing is referencing the survey. Since the plaintiff had the survey, nothing was hidden and nothing nefarious was going on.

[79] Therefore, at this point in time, Metrolinx had Blakes’ reporting letter and Longo’s Declaration of Possession.

[80] Lot 34, as shown on the subject reference plan, is labelled “STREETS AND LANES” (V7, EX A, P9)

[81] The “picture” reproduced at V2, T13, P31 appears to be an 1897 artists rendering. It clearly shows a pedestrian promenade on the south of the building and not a “laneway”. The building shown at page 31 burnt down in 1896 and was rebuilt in about 1906. (V2, TB-12, P27 Q 127) If there was an easement, it was interrupted for about nine years.

[82] Therefore, since the plaintiff would need 60 years of uninterrupted use between 1890 and 1950 to obtain an easement, it simply does not have one. This is because the legislation in 1950 prevented anyone getting a prescriptive easement over Crown land.

[83] As admitted by Judge on his examination, the issue of whether or not there was an easement, was not discussed at the time the plaintiff purchased the subject property. (V2, TB-12, P4, Q8-16) This answer was never changed subsequent to Judge’s examination, which took place in September and November 2020. Judge is a son of the owner of the plaintiff, he swore an affidavit on behalf of the plaintiff and was produced by the plaintiff for examination.

[84] The front of 283 Duke Street exits onto Duke Street and therefore the proposed gates or a fence will not obstruct entrance to the building. (V7, Ex G, P19) This picture also shows significant parking to the west and at the northwest corner of the building.

[85] All rental units in the building can be accessed through the interior of the building. (V2, T12, Q99-101) The plaintiff tried to significantly downplay internal access and spoke of safety issues, while at the same time refusing to produce a floor plan. Therefore, a negative inference should be imputed.

[86] Although some tenants may prefer to access their units from the south side, that is not a necessity and no information has been produced from the fire department with respect to any safety issue.

[87] The plaintiff’s claim cannot succeed for many reasons including: (a) At all material times the Metrolinx property was Federal land and claims for prescriptive or adverse possession are not permitted by law of general application; (b) The rail line has been identified as a “federal undertaking” for the “general advantage of Canada” and by operation of Section 92(10) of the Constitution Act 1867, the land in issue is not subject to interference by provincial legislation, including by the Real Properties Limitation Act or the Land Titles Act. (c) Railways are not permitted to dispose of interest in railway lands and, thus, the Metrolinx property is not capable of forming the subject matter of a grant, as required by the common law test for a prescriptive easement and (d) The “evidence” produced by the Plaintiff – i.e. photographs from which the Plaintiff has drawn its own conclusions - is not sufficient to establish that a claim for prescriptive easement can be made out, regardless of the legal barriers identified above.

[88] The property was federal land from 1923 to 1995.

[89] The plaintiff cannot interfere with a federal undertaking and the remaining time before the date of conversion (1995 to 2002) is not sufficient to establish a prescriptive easement. Therefore, the plaintiff has no prima facie case for prescriptive easement.

[90] A Railway Company had no power to grant an easement over its land that would in any way interfere with its ability to use its land for the purposes of the railway or lessen its control over its own land for railway purposes.

[91] The Plaintiff has failed to establish a prescriptive easement on the facts.

[92] The essential characteristic of an easement at common law is that the easement must be capable of forming the subject matter of a grant. In other words, the easement must be of a type recognized by the law, be defined with adequate certainty and be limited in scope. (394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, para. 73)

[93] The plaintiff has failed to tender any evidence, which would provide a technical description of the right-of-way claimed, such as a survey or legal description.

[94] The plaintiff’s own photographs demonstrate how the Metrolinx property has been used differently by the Railways over time, which on its own, defeats a claim for prescription.

[95] The photographs at V1, TB-3, show the rail lines in different locations on the subject property over time, 1936 – 1962 in particular. The photograph at page 34 shows tracks proximate to the south side of the building at 283 Duke Street, including a spur line which permitted loading to and from the building directly to the rail line.

[96] Therefore, the plaintiff’s historical evidence prior to 1975, is limited to two photographs, both of which showed the Railways use of the Metrolinx property to the exclusion of 283 Duke Street.

[97] The plaintiffs claim for loss of parking, ingress and egress does not constitute an irreparable harm and does not meet the threshold of the second part of the test for injunctive relief.

[98] Irreparable harm requires harm that cannot be quantified in monetary terms or that cannot be cured. In the RJR-MacDonald case “irreparable” was defined at paragraph 64 as follows”

64 “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court’s decision… Where one party will suffer permanent market loss or irrevocable damage to its business reputation…or where a permanent loss of natural resources will result when a challenged activity is not enjoined…The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration.

[99] Here, there are two other parking areas on the 283 Duke Street property, as well as nearby street parking proximate to the site. In addition, all units in the building can be accessed internally and have doors that exit into a hallway within the building.

[100] In contrast, the inability of Metrolinx to use the property to advance to its infrastructure projects would be greatly prejudicial to Metrolinx, the City of Kitchener, the Region of Waterloo and the general public, who all stand to benefit from the construction of the Park Street Layover and the Kitchener Transit Hub.

[101] The defendant submits that both parties agree the modified RJR-MacDonald test is the one that should be applied, as set out in para. 37 of the Hamilton case which reads:

37 I will add one caveat. Where the plaintiff relies on the modified traditional test the standard to be met regarding the first criteria should be higher than the standard required where all three criteria are to be considered. In the traditional case the plaintiff must show merely that the case is not frivolous or vexatious in order to satisfy the court that there is a serious question to be tried. See the RJR-MacDonald case. In my view, because of the emphasis on this criteria in the present case the plaintiff must prove that it has a strong prima facie case. This view is consistent with the cases that have held that the plaintiff must establish a strong prima facie case where the interlocutory injunction will have the practical effect of putting an end to the action…

[102] Both parties agree that the first three of four characteristics needed to obtain an easement as set forth in para. 48 of these reasons above have been met, however, Metrolinx submits the fourth criteria has not been met. That is, the easement sought by the plaintiff is not capable of forming the subject matter of a grant.

[103] Metrolinx submits, the plaintiff has not dealt with the restrictions set out for claims of easement against the Crown and in particular, against railway lands.

[104] By s. 3 of the Real Property Limitations Act, the limitation period to obtain an easement against the Crown is 60 years.

[105] In this case, there is no evidence that the true owner of the land was ever excluded from the land.

[106] Special rules/legislation apply to railway lands, yet, despite Metrolinx sending two cases, including one case on point from the Supreme Court of Canada to the plaintiff in December 2020, the plaintiff, both in its written material and oral submissions, has failed to address this issue. It does not matter who owns the railway lands, only that they are in fact railway lands.

[107] Sections 13 and 14 of the Federal Real Property and Federal Immovables Act prevent anyone from obtaining an easement by prescription over federal lands. (SC 1991, c, 1950 – (V9, TB-23))

13 Except as expressly authorized by or under an Act of Parliament, no person acquires any federal real property or federal immovable by or under a provincial act.

14 No person acquires any federal real property or federal immovable by prescription.

[108] The word grant, land and public lands were defined in an Act Respecting Grants of Public Lands (1950, c. 19, s,1). Land essentially includes all interest in real property. Public lands include; “lands belonging to Her Majesty in the right of Canada includes lands of which the Government of Canada has power to dispose of.” (V9, TB-26)

[109] The plaintiff submits, in its reply factum, (V3, T2) that Metrolinx did not plead that CN Rail was a Crown agency and therefore CN Rail cannot enjoy the legislation prohibiting prescription.

[110] Metrolinx submits agency status has nothing to do with the ownership of land. By reason of the Canadian National Railways Act, 1920, c. 39 at S. 33, CN Rail could avail itself of any defence available to His Majesty.

33 Any defence available to the respective corporations, including His Majesty, in respect of whose undertaking the cause of action arose shall be available to the company…

[111] Therefore, for the plaintiff to prove it has a prescriptive easement it must do so from 1890 to 1950. However, as has been previously stated, there was a multi-year interruption of that 60-year period, at the turn-of-the-century.

[112] Metrolinx also relies on The Railway Act of 1888, which at s. 306 stated:

306 … the Grand Trunk Railway … are hereby declared to be works for the general advantage of Canada, and each and every branch line or railway now or hereafter connecting with or crossing the said lines of railway, or any of them is a work for the general advantage of Canada. (V9, T 29)

[113] In addition, Metrolinx relies s. 18 of the Canadian National Railways Act of 1920 which states:

18 The works of any of the companies comprised in the Canadian Northern System (this includes CN Rail) which have not heretofore been declared to be works for the general advantage of Canada are hereby declared to be works for the general advantage of Canada… (V9, T16, P5, Para.18)

[114] Section 92 of the Constitution Act, 1867, sets out the exclusive powers of provincial legislatures, but specifically excludes at s. 92(10), the following:

92(10) Local Works and Undertakings other than such as are of the following Classes: a) Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the province with any other or others of the provinces… b) … c) Such Works as, although wholly situate within the Province, are here before or after their Execution declared by the Parliament of Canada to be for the general advantage of Canada…

[115] In addition, the Supreme Court of Canada has identified CN Rail as an undertaking of federal importance, whose activities are not to be interfered with by provincial legislation. In the case of Canadian National Railway v. Trudeau, 1962 SCR 398, the Supreme Court stated at paragraph 16:

16 The Canadian National Railway Company’s undertaking extends throughout Canada and, being a work for the general advantage of Canada, its rights and powers are declared by federal legislation and the right to exercise such powers may not be prevented or interfered with by Acts of a provincial legislature.

[116] Metrolinx submits, Ontario’s Real Property Limitations Act did not apply to the Metrolinx property from 1923 to 1995 and the remaining period before the date of conversion - i.e. 1995-2002 - is not sufficient to establish a prescriptive easement.

[117] Therefore, the plaintiff has no prima facie case for a prescriptive easement.

[118] In addition, and in any event, neither the plaintiff or anyone else could get a prescriptive easement over railroad land which is highly regulated no matter who owns the railroad.

[119] The Act incorporating the “Grand Trunk Railway of Canada” in 1852 did not give Grand Trunk the power to dispose of railway lands. (V9, TB-14)

[120] For a railway to sell (or adversely deal with) railway land, it would have to declare the land surplus, or for some other reason, unnecessary for the works of the railway. It would then have to follow the mildly complicated procedure set out in s. 278 of the Railway Act of 1888. (V9, TB-29, s.278) The final decision was reserved for the Railway Committee under section 11 of the 1888 Railway Act.

[121] As set out in the 1904 Ontario Court of Appeal decision in the case of Grand Trunk Railway v. Valliear, 1904 CarswellOnt 56, the court confirmed at paragraphs 4 and 6 that the railway would have had to follow the procedure set out above, before an easement could have been obtained. No more recent cases were referred to the court, by either counsel.

[122] Metrolinx submits that the plaintiff has the onus of proving the railroad took some positive action to declare the lands surplus.

[123] On the sale of the property from CNR to Metrolinx, CNR declared that there was no easement, because they had not taken any positive actions to grant one.

[124] It is also impossible for the court to grant an easement, since the plaintiff has not provided the court with a proper description of the property over which it claims an easement.

[125] Although it is difficult to see on the filed paper R Plan, (V7, Ex. A) there is a manhole on Part 2 of the Reference Plan just south of the 283 Duke Street building. This manhole would be in the area of the “laneway” over which the plaintiff claims an easement. The manhole is marked STMMH, which the court understands, stands for storm water management manhole. It is something that from time to time, the Metrolinx would need access to.

[126] In an effort to show how the land (and in particular the alleged “laneway”) has been used since 1897 to date, the plaintiff has appended several pictures and/or renditions in V2, TB-13, pp. 30-49 and V1, TB-3, pp. 34-38. Metrolinx’s pictures are at V7, pp. 23-30.

[127] Given the dates of the pictures, whether they were pictures or artist renditions, the plaintiff submitted they fell well short of proving any kind of a prescriptive easement. I will have more to say with respect to the pictures in the findings portion of this judgment.

[128] If the court determines that the Metrolinx land is railway land, the Railway Act and the Ontario Court of Appeal case of Grand Trunk Railway applies, which would require the railway to take some positive action to dispose of an interest in its land. It did not do so.

[129] If the court determines that the railroad was for the general advantage of Canada, then no provincial legislation has any effect over the railway land.

[130] Since the Canadian National Railroad was federally owned, claims for prescriptive easements over any of its land was barred after 1950.

[131] If the 60-year prescriptive period applies, the plaintiff is short for at least the estimated five or six years it took to re-build the building on the 283 Duke Street land.

[132] If part of the plaintiff’s argument is that there was an easement before the turn-of-the-century, and within the 60 year prescriptive period, over the pedestrian promenade, the pedestrian promenade cannot form part of an easement for the benefit of the owner of 283 Duke Street, because 283 Duke Street also owned the land on which the pedestrian promenade was built. The pedestrian promenade did not disappear as set out in the 1897 artist’s rendition until early in the 1900’s when the subject building was built right up to the lot line.

Balance of Convenience

[133] The balance of convenience favours Metrolinx. The two infrastructure projects will cost many tens of millions of dollars and, as set out before, will greatly benefit the travelling public in Waterloo Region with a central hub connecting all forms of mass transit and will particularly assist with rail access to and from Toronto.

[134] The Park Street Layover is necessary to accommodate rail traffic, particularly when the locomotives will not be in use. It will alleviate noise which currently occurs when safety gates go up and down to accommodate train traffic at level crossings in the area. Currently two streets are impacted.

[135] If Metrolinx is not allowed to build its prefabricated track on the so-called “laneway”, the next closest property owned by Metrolinx which would accommodate the size of track and machinery needed is in Guelph, Ontario, approximately 15 miles away.

[136] To try to move the large prefabricated rails 15 miles to the Park Street Layover area would not only be very expensive, but it would severely impact the Metrolinx operations by tying up the track for lengthy periods of the time between Guelph and Kitchener.

[137] Although it will be somewhat later in time, the subject property will be needed to build a pedestrian platform for the new Kitchener Transit Hub. The pedestrian platform is designed to run from King Street to Duke Street.

[138] On the other side of the balance of convenience debate, the only evidence that has been submitted to the court is one of convenience parking for some of the plaintiff’s tenants. That is the extent of the evidence put forward by the plaintiff.

[139] The evidence put forward by the plaintiff is that the issue of an easement was not discussed when it purchased the property. It has refused to produce its legal reporting letter dealing with the purchase of the property.

[140] It has refused to produce the leases that it has with its tenants that may or may not talk about parking.

[141] It has not produced any documentation from the fire department or other source showing safety concerns.

[142] It has refused to produce an interior plan of the building to show how tenants can access their tenements.

[143] It has not filed any evidence about how not being able to use the “laneway” would impact it or its tenants in any way other than convenience parking for some of the tenants.

[144] With respect to the plaintiff’s request to strike Brown’s affidavit and part of Metrolinx’s factum, Metrolinx submits that the rules permit an affidavit to be sworn on information and belief which is what Brown did. He stated where he obtained the information from and belief in the truth of that information. In addition, the plans for the Park Street Layover and Kitchener Transit Hub are, and have been, public for a significant period of time and are accessible on the government website. In addition, Brown’s qualifications were not challenged on his cross examination.

[145] For the proposition that a staff member of a law firm may swear an affidavit for use on the motion, Metrolinx referred the court to paragraphs 9 and 11 of Mapletoft v. Service 2008 CarswellOnt 897.

[146] In response to the plaintiff’s claim to strike paras. 49 - 60 of Metrolinx’s factum, Ms. Higgs submitted that the plaintiff cannot claim to be taken by surprise by the argument about whether or not prescriptive easements are available on federal land or on railway land. She submits that paragraphs 18 and 20 of Metrolinx’s statement of defence adequately plead that CN did not have authority to grant the subject easement.

[147] In addition, she specifically wrote to the plaintiff’s counsel on February 3, 2020 stating that the plaintiff had “failed to demonstrate that the former corporate owner of Metrolinx land had the authority to grant an easement, which is required in order to make out a case for a prescriptive easement.” In addition, she submits that she sent two cases to the plaintiff’s counsel in December 2020 with respect to easements and railroads, and the plaintiff examined on that information.

[148] With respect to the federal component, all material was delivered to the plaintiff’s counsel in December 2020 and therefore he had the material for approximately two months prior to the hearing.

[149] Ms. Higgs submits she does not have to plead federal legislation of general application such as the Federal Real Property and Federal Immovables Act.

Plaintiff’s Reply

[150] There is no evidence filed to confirm what Ms. Higgs said, about where the Layover and the Hub will go.

[151] No drawings have been produced to show that Metrolinx will need to use all the property right to the lot line.

[152] There is no mention in the statement of defence and counterclaim of the Park Street Layover or Kitchener Transit Hub or the cost of same. The statement of defence does however mention the Kitchener Corridor Expansion project, which is another way of referring to the other two projects, when the statement of defence and counterclaim is read as a whole.

[153] Metrolinx never properly pled the items contained in paragraphs 41 - 60 of its factum. The plaintiff submits these paragraphs should be struck and relies on the 2002 Ontario Court of Appeal case of Rodaro v. Royal Bank of Canada, where the court stated the following at paragraph 60:

[60] It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 460635 Ontario Limited v. 1002953 Ontario Inc.. …

… The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial…

[154] The plaintiff also relies on the case of Tutt v. Ishakis et al. 2020 ONSC 5711 for the proposition set out in the headnote as follows:

The master did not err in finding that the defendants had no right to amend their pleadings as a matter of law. Affirmative defences, including statutory defences, had to be pleaded. There was not to be trial by ambush. The parties to the lawsuit are entitled to have the matter adjudicated on the issues joined in the pleadings. With the defendants having brought the motion to amend, the master was entitled to determine whether to grant leave and did not exceed her jurisdiction.

[155] In that case, the master found there was non-compensable prejudice, since, during the four years that had elapsed without the defendants raising the s. 8 defence, interest on the promissory notes accrued at $19,000.00 per month.

[156] Plaintiff further submits that Metrolinx has not provided the appropriate authorities to reach the conclusion that CN is an agent of the Crown and thus any property owned by CN is federal property. In addition, Metrolinx does not explain in any fashion, if, by virtue of CN becoming a regular federal company governed by the Canada Business Act, whether or not the Act applies retrospectively to prohibit any claims for easements and adverse possession.

[157] There is no proof that the subject building burnt down.

[158] Any claim for an easement of necessity or easement based on proprietary estoppel is not precluded under the Act because they are equitable remedies.

[159] The court acknowledges receipt of emails from Mr. Govedaris dated February 5, 2021, which I have marked as volume 11 for the record and February 9, 2021, which encloses a legal case and I have marked it volume 12 for the record. The February 5th email proffers further submissions and evidence.

Reasons and Findings

Striking Part of Metrolinx’s Factum Dated January 29, 2021

[160] I am not prepared to strike paras. 41 - 60 of Metrolinx’s factum dated January 29, 2021. While it would have been preferable if Metrolinx had been more precise by pleading the exact statutes it was relying on, paragraphs 18 and 20 of Metrolinx’s defense certainly put the plaintiff on notice that CNR had no authority to grant an easement over lands owned by it.

[161] In addition, counsel for Metrolinx in December 2020, notified and sent case law to plaintiff’s counsel with respect to the federal component.

[162] At no time did plaintiff’s counsel seek an adjournment of the hearing.

[163] The Tutt case referenced by the plaintiff dealt with a plaintiff’s claim for interest which was not pleaded. In arriving at its decision, the court found, on the facts of that case, that to allow the amendment after four years would result in non-compensable prejudice to the other side. That is not the issue in this case.

[164] If the plaintiff is submitting that the court cannot take into account legislation that was not referred to by counsel, that premise is incorrect. Surely, if a court is aware of legislation or a case that has a bearing on the decision it must make, but was not referred to by counsel, it must take that legislation or case into account in arriving at its decision.

Striking Brown’s Affidavit

[165] I am not prepared to strike the Brown affidavit. The rules permit an affidavit to be sworn on information and belief, which is what Brown did. He stated where his information came from and his belief in the truth of the information.

[166] In addition, the plans for the Park Street Layover and Kitchener Transit Hub have been public for a significant period of time and are accessible on the government website. Furthermore, Brown’s qualifications were not challenged on his cross examination.

[167] It is not unusual for a staff member of a law firm to swear an affidavit for use on a motion. Based on paragraphs 9 and 11 of Mapletoft v. Service 2008 CarswellOnt 897, I would not strike out any portion of the Brown affidavit.

Metrolinx’s Need for the Subject Property

[168] The plaintiff’s submissions that Metrolinx has not proven that they need to use all of the subject property right to the lot line to prefabricate the railway tracks has no traction. The subject land is relatively narrow, being 17 feet in width measured from the centre line of the tracks.

[169] Given the fact, that the rails are 80 feet in length and will be prefabricated into railway tracks, and that heavy equipment will have to be on site to load, unload and fabricate the tracks, 17 feet appears quite narrow. In addition, the 80-foot rails will have to be stockpiled and undoubtedly tractor-trailer trucks will need access to the property to deliver materials. It will become for a period of time, a dangerous work site.

Proprietary Estoppel

[170] Based on the Cowper-Smith case referenced by the plaintiff, I do not find that the plaintiff has shown: (a) there was any representation or assurance made to it by which it would expect to enjoy some benefit over the property, (b) that it relied on any expectation by doing or refraining from doing something, or (c) that it suffered a detriment as a result of such reasonable reliance that would be unfair or unjust.

Adverse Possession

[171] It is difficult to reconcile this claim by the plaintiff with the federal legislation referred to in this judgment.

[172] The plaintiff submits it would need to provide evidence of 10 years of possession between November 18, 1992 to November 18, 2002. None of the pictures that have been presented to the court deal with that period of time.

[173] Although there is an affidavit from a realtor named, Hoffman, attesting to the fact, that since 1975 tenants used the “laneway”, it does not deal with the federal legislation prohibiting the owners of 283 Duke Street from obtaining a prescriptive easement. Hoffman’s statement is very short, it does not say why the “access lane” was essential for the unnamed tenants he professes to be knowledgeable about it. In addition, he does not deal with the 1979 photographic evidence which does not show either a gravel lane way or usable pedestrian doors on the south side of 283 Duke Street and in fact shows no cars or pedestrian activity whatsoever.

[174] Even if the court were to give some credence to the plaintiff’s argument, I would not find on the basis of the record before me, that the owners of 283 Duke Street excluded the true owner (the railway) from possession of the subject property

General

[175] Despite submissions made by the plaintiff, I am satisfied on the record before me, that the two infrastructure projects are going to proceed as soon as possible.

[176] The projects which will cost many tens of millions of dollars, have been common knowledge to the residents of the Waterloo Region for years. This would include the plaintiff. There is no reason for Metrolinx to produce all the documentation which would be required to get projects of this size, to the stage where they appear to be ready to start construction in a very short period of time.

[177] Whether or not construction will start in April, June or October 2021, is irrelevant. Metrolinx needs to know as soon as possible whether it can use the subject land we have referred to as the “laneway”, so it can proceed to plan for the first phase of construction for these projects. This would be to prefabricate the rail systems necessary for the Park Street Layover.

Other Submissions put Forward by the Plaintiff

[178] The Blakes’ reporting letter does little if anything to assist the plaintiff. Whether Blakes referred to the subject area as an encroachment or a “laneway” is essentially meaningless. Blakes would not have had any reason to include in their reporting letter something to the effect that no one can get an easement over railway lands. They were retained to purchase the property, not to opine on the availability of easements over railway lands.

[179] Although part of the plaintiff’s claim is in equity, it has refused to produce its legal reporting letter dealing with the purchase of 283 Duke Street, or any of its leases. At the same time, the plaintiff stated that the issue of an easement was never discussed with its lawyers during the purchase of the property. This seems incredible since it would have known that it did not own the “laneway”.

[180] The fact that the plaintiff has maintained the gravel “laneway” for the last 16 years is of no assistance whatsoever. Both parties agree, and the court concurs, that the plaintiff could not have gotten an easement over the “laneway” since the lands conversion to Land Titles, which occurred approximately 1½ years before the plaintiff purchased the property in 2004.

[181] Numerous photographs, sketches and artist renditions have been put before the court in an effort to show that the plaintiff and its predecessors in title had an easement over the property for 60 years prior to 1950. That is, the plaintiff would have to show that it had an easement from 1890 to 1950. I will go through and comment on most, if not all, of the photographs supplied by the plaintiff contained in V2 TB-13, pp. 30-48 and V1, TB-3, pp. 34-38. I will also go through photographs supplied by Metrolinx in V7, pp. 23-30. I will refer to all “photographs” by date.

[182] 1897 - (p 31) This is a page out of a book titled “Busy Berlin”. This is not a picture, but an artist’s rendition. It was sketched before the subject building burned down and was rebuilt. It does not appear to show a “laneway” and while it may be a sign of the times, there are no cars shown. The pedestrian promenade in the sketch is no longer functional since the south wall of the reconstructed building in the early 1900’s was extended south to cover the entire promenade. In addition, there appear to be numerous moderately large trees growing on the alleged “laneway”. Also, there are no spur lines shown which service 283 Duke Street. In short, this artist’s rendition is of no value whatsoever with respect to the issue of whether or not there was a prescriptive easement

[183] 1905 – (p. 33) This appears to be a picture of a serious train accident near the southwest corner of the subject building. It is a poor-quality picture and does not show the ground area of the subject “laneway”. While there are people milling about all over the picture, there do not appear to be any vehicles of any type using the “laneway”. Like the previous picture, this picture is of no value whatsoever with respect to what use was being made of the “laneway” and the issue of whether or not there was a prescriptive easement.

[184] 1908 – (p. 35) This is apparently a fire insurance map. As can be seen on the map, there appears to be five sets of tracks heading in an east-west direction along with several spur lines, one of which goes directly to a loading area at the back of 283 Duke Street. In 1908, this building was used to manufacture furniture and the spur line would have been used to bring in raw wood and to ship out the finished furniture. Although it is difficult to tell, there is very little room between the south side of the subject building and the north side of the most northerly railway track. In any event, there does not appear to be a gravel roadway, or any use being made of what appears to be a very narrow strip of land between the south side of the subject building and the north side of the most northerly railway track. Therefore, like the two previous pictures, this picture is of no value whatsoever with respect to what use was being made of the “laneway” and the issue of whether or not there was a prescriptive easement. In fact, it appears that the alleged “laneway” was being used by the railway.

[185] 1912 – (p. 37) This picture also shows multiple railway tracks running in an east-west direction. It does not show any “laneway”, nor any usage whatsoever by cars or buggies or people on the “laneway”. Also there do not appear to be any pedestrian doors on the south side of the building, save for one, which is high off the ground and does not have steps leading up to it. Therefore, if it is a pedestrian door, it would not be a pedestrian door for frequent use. This picture is also of no value whatsoever with respect to what use was being made of the “laneway” and the issue of whether or not there was a prescriptive easement.

[186] 1947 – (p. 39) This was a picture that is taken some distance away from the building. It suffers from the same problems as the 1912 picture does. This picture is of no value whatsoever with respect to what use was being made of the “laneway” and the issue of whether or not there was a prescriptive easement.

[187] 1956 – (p. 41) This picture appears to be taken from a greater distance away than the 1947 picture. It shows virtually no detail of the land where the “laneway” might be. There does appear to be a spur line, which might be on the land of the current “laneway”. Other than the fact that there appears to be a spur line on the land where the “laneway” might be, which would mitigate against there being an easement, this picture is of no value to the plaintiff in its effort to show that there was a prescriptive easement.

[188] 1960 – (p. 43) This is a picture taken from the southeast corner of the subject building. It shows three sets of tracks, two of which are probably spur lines. It appears that the westerly two thirds of the building on its south side has a raised loading dock attached to it. This dock would cover a significant portion of the alleged “laneway”. While there are three parked cars, they are all parked to the east of the raised dock. It is doubtful, based on the picture, that any more than three cars could be parked on the alleged “laneway”. Although there may be one pedestrian door on the south side of the building, there are not multiple pedestrian doors.

[189] 1974 – (p. 45) This is a picture showing a diesel locomotive pulling several boxcars. In the area, it appears that there are three sets of railway tracks running in an east-west direction. In the background there is a fence and a parking or loading area which is situate to the west of the subject building. Of interest is a chain-link fence and gate which runs in two directions. From an easement point of view, the gate runs in a north-south direction from the southwest corner of the building almost to the railway tracks. That is, it runs perpendicular to the gravel roadway which is the alleged easement. It would restrict and control any east-west traffic on the “laneway”. This is exactly where Metrolinx proposes to build its west gate.

[190] 1979 – (p. 47) This is a picture of part of the south side of the building capturing the southwest corner. The picture shows what appears to be four east-west railway lines. The area of the alleged “laneway” appears to be covered with grass and weeds. No vehicles or people are in the picture. The loading dock which appeared in the 1960 picture appears to have been removed. There do not appear to be any pedestrian doors that are used on any type of a frequent basis. Nothing in this picture would suggest that the “laneway” area is being used by anyone for anything.

[191] 1980 to 2018 – No pictures whatsoever have been tendered to show what use was being made of the alleged “laneway” during this 38-year period.

[192] 2019 – (p. 49) - This picture shows multiple cars parked on the alleged “laneway” easement, but this is not helpful given the facts of this case.

Pictures in V1, TB-3, pp. 34-38

[193] 1936-1962 – (p. 34) - The exact date of this picture is unknown. It shows five or six east-west railway tracks, the most northerly of which appears to be a spur line serving 238 Duke Street. The picture shows a semi trailer truck backed up at an angle to the south wall of the subject building, at what appears to be the only door on the south side of the building. The truck appears to be parked at approximately a 30° angle to the building. At that angle, the back part of the trailer is almost touching the building and the front part completely covers the spur line. There are no other doors and one car is parked near where the spur line ends. This picture would suggest that the “laneway” is being used by the railroad as a spur line and occasionally by someone associated with 283 Duke Street.

[194] 1962 - (p. 35) - This picture appears to be the exact same picture referred to above under the year 1960, and my comments with respect to it have not changed.

[195] 2009 – (p. 36) - This is a poorly reproduced Google screenshot. Other than perhaps two cars being part on the subject “laneway”, it is very difficult to discern anything else, save and except that there do not appear to be any pedestrian doors on the south side of the building. This screenshot is not particularly helpful in proving an easement. In fact, since it is after November 18, 2002, it would not be possible to obtain an easement.

[196] 2016 – (p. 37) - This again is a poorly reproduced Google screenshot and the court’s comments with respect to it are the same as for the 2009 Google screenshot. Since it is after November 18, 2002, it would not be possible to obtain an easement.

[197] 2019 – (p.38) – This is again a poorly reproduced Google screenshot. It appears to show approximately four cars parked on the alleged “laneway” and perhaps one pedestrian door with a sign hanging over the top of it. Since it is after November 18, 2002 it would not be possible to obtain an easement.

Pictures Filed in V7, pp. 23-30.

[198] November 2014 - (p. 23) - This picture shows the south side of the building, three parked cars and four large concrete blocks. This picture was taken 11 years after the plaintiff purchased the property. While it is difficult to see, there may be one pedestrian door in the south wall of the subject building, and the spur line appears to have been removed.

[199] May 2015 – (p.25) - This is a similar picture to the one at page 23, however there are no parked cars and no other activity along the south side of the building.

[200] June 2016 - (p. 26 and 27) - This is a similar picture to the one at page 25, however there is a fence that has been constructed between the large cement blocks and a portion of the south side of the subject building nearest Duke Street. Three or four cars can be seen parked close to the south side of the subject building.

[201] At page 29 is an undated Google Earth aerial view of the building showing approximately four or five cars parked on the “laneway” and several other cars parked in the two parking lots which have been previously mentioned and are to the west of the subject building.

[202] Overall, the pictures fall well short of proving/showing that the plaintiff’s predecessors in title had a prescriptive or any other easement over the “laneway” based on the use that the plaintiff’s predecessors in title made of the property between 1890 and 1950. In fact, the pictures lead to the opposite conclusion, since the railway’s spur lines were present on the “laneway” in the 1908, 1912 1960 and 1936 – 62 pictures.

Railway Land

[203] No evidence was presented to the court to suggest that the use of such land is not governed by the numerous pieces of railway legislation set out in Schedule B of the Metrolinx factum dated January 29, 2021. I therefore find that the subject land is railway land.

[204] In addition, based on the submissions and the legislation presented to the court, I find that the railroad undertaking was for the general advantage of Canada. Therefore, no prescriptive easement could have been obtained after 1950.

[205] Furthermore, based on the Railway Act and the Grand Trunk Railway case, the railway could not dispose of an interest in any of its land without going through a formal procedure to do so. There is no suggestion, or evidence of any kind, to suggest that this occurred.

Balance of Convenience

[206] Although it may not be necessary to make a finding on the balance of convenience test, I will do so.

[207] On one hand, the plaintiff, essentially on behalf of its tenants, claims there will be inconvenience and perhaps safety concerns. The only evidence presented was that some tenants park on the “laneway” on the south side of the building and approximately three tenants have direct access to their tenements through pedestrian doors in the south wall. None of the supposedly affected tenants filed any material.

[208] There was also an issue raised that the access tenants have through the south wall, also doubles as a fire route. The only other issue with respect to fire safety is that there is a metal stairway which empties into the “laneway” and is a fire escape from the second story. If this is an issue, it could easily be resolved by Metrolinx installing their fence approximately 3 feet away from the building, between the bottom of the metal stairway and the west end of the building.

[209] The evidence before the court is that all tenants have access to their units through the interior of the building. There is no evidence to suggest that tenants having to access their units through the interior of the building is of any concern whatsoever, however, in the case of some tenants, it is a matter of convenience.

[210] No interior floor plan was produced by the plaintiff, no leases were produced which might deal with parking, no affidavits from any tenants were produced to suggest what impact their not being able to use the “laneway” would have on their businesses, no material was produced to show what types of businesses the tenants run and no documentation was produced from the fire department about any safety issues.

[211] There is no evidence before the court that any of the general public would be negatively affected if the temporary easement is not granted

[212] On the other hand, with respect to Metrolinx, it is involved in two time sensitive multimillion dollar infrastructure projects, which will greatly benefit the residents of the Waterloo Region and surrounding area and other members of the general public who may wish to travel by public transit to and in the Waterloo Region. The Kitchener Transit Hub will link train travel, including GO Transit, VIA Rail and the Waterloo Region LRT, along with local and intercity buses, etc.

[213] These two projects have been in the planning stages for a number of years and are scheduled to commence in April 2021.

[214] Based on the planning and staging of the two projects, the Park Street Layover project is to be completed first. It is because of that project that Metrolinx needs use of the subject property as soon as possible.

[215] The court does not need exact figures to help it determine that there would be a very significant increase in costs if the 80 foot prefabricated rail systems had to be made in Guelph and then shipped to Park Street, a distance of approximately 15 miles, rather than being constructed on the subject property and being shipped approximately 1 mile to Park Street.

[216] In addition to the logistics of shipping such large objects for 15 miles, the time it will take will also tie up the track between Kitchener and Guelph for other commercial train traffic for an undetermined period of time. All of these potential problems would translate into higher costs and lost revenue for Metrolinx and its partners in these infrastructure projects.

[217] Although the Kitchener Transit Hub will be constructed after the Park Street Layover, the Kitchener Transit Hub will require the use of the subject property for a pedestrian platform. The pedestrian platform will be approximately 315 m. long and will span from King Street to the east side of the current Duke Street, which is to be closed.

Summary

[218] On the record before me, I do not find that there is a serious issue to be tried. There is nothing in the record to suggest that the plaintiff will suffer irreparable harm if the injunction is not granted and the balance of convenience strongly favours Metrolinx, not the plaintiff.

[219] If the court were disposed to give an interlocutory injunction, the plaintiff has not provided the proper legal description for it to do so.

[220] In any event since the court has found that: (a) the subject property was federal land; (b) the subject rail line is a federal undertaking for the general advantage of Canada; (c) railways are not permitted to dispose of interest in railway lands; (d) there is no legal description for the alleged easement; (e) the balance of convenience strongly favours Metrolinx; and (f) the claim of the plaintiff, even if successful, does not rise to the level of irreparable harm and it could be adequately compensated for in damages; the court makes the orders set out below.

[221] Based on the foregoing, I dismiss the plaintiff’s motion for status quo, and alternatively it’s motion for an interim injunction with costs. I make no order with respect to restricting the use that Metrolinx may make of the subject property. Of course, if there is a period of time that Metrolinx decides it does not need use of the property for its own purposes, it may enter into whatever commercial arrangements it and the plaintiff decide on.

[222] If the parties are unable to agree on costs, Ms. Higgs shall forward her brief submissions on costs to me by February 23, 2021. Mr. Govedaris shall forward his brief response to me by March 2, 2021. Ms. Higgs shall then forward her reply, if any, to me by March 5, 2021. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. Cost submissions, excluding bills of costs, shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

Justice James W. Sloan Released: February 16, 2021