COURT FILE NO.: CV-19-00000036-0000 (Owen Sound) DATE: 2021 02 19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRENDA IRENE SCHOTT, RICHARD WAYNE SCHOTT, STUART Allan Steckle, Ruth Ann Steckle, SUSAN FRANCES SOUTER, and MICHAEL OREST WYSLOBICKY
Ross H. Thomson, for the Applicants Applicants
- and -
Veronica Elizabeth Malfara
David Nusko, for the Respondent Respondent
HEARD: November 13, 2020 via videoconference
ENDORSEMENT Kumaranayake J.
OVERVIEW
[1] In March 2019, the Applicants brought an Application for a determination of their rights with respect to a claimed easement over the Respondent’s property.
[2] The Applicants and the Respondent each own properties in the Town of South Bruce Peninsula. The Respondent owns waterfront property on Chesley Lake. The properties owned by the Applicants are landlocked. There was a dispute over a 20-foot wide strip of land (“the strip”) which forms part of the westerly limit of the Respondent’s property. The length of the strip goes from the water’s edge to Golf Course Road.
[3] The Applicants all claimed to have a right-of-way over the strip as it is necessary for their access to Chesley Lake. The Applicants alleged that the Respondent had interfered with their use of the right-of-way by placing physical obstructions on it and making it muddy and slippery as a result of allowing water to drain onto the right-of-way. Therefore, the Applicants said that they could not drive their vehicles to the water’s edge to access and launch their boats, canoes, and kayaks.
[4] The Respondent did not dispute that the westerly limit of her property is subject to a 20-foot right-of-way. However, the Respondent did not agree that all the Applicants had a right to use this 20-foot strip of land. Further, if some or all the Applicants had a right-of-way, the Respondent did not agree that it included vehicular access to launch boats, canoes, or kayaks.
[5] By my Reasons for Judgment, dated June 1, 2020 (see Schott v. Malfara, 2020 ONSC 3411), I found that all the Applicants had a right-of-way over the Respondent’s property and that their permitted use includes both vehicle and pedestrian traffic. The Respondent was ordered to remove, within 60 days, all obstructions from the right-of-way including the river rocks, fire pit, trees, and plants/gardens, and any other item which she placed on the right-of-way and completely bury the big-O drainage pipe so that the use of the right-of-way by pedestrian and vehicular traffic to access to Chesley Lake is unimpeded (see para. 107(5) of the Reasons for Judgment). The Respondent was not ordered to maintain the right-of-way as that was the responsibility of the Applicants.
[6] Unfortunately, the parties are still having a dispute with respect to this right-of-way. By a motion, dated September 10, 2020, the Applicants seek an Order to compel the Respondent to comply with the June 1, 2020 Order. In the alternative, the Applicants seek an Order to permit them to engage appropriate personnel to remove the obstructions from the right-of-way at the Respondent’s expense.
[7] The Applicants’ motion was returnable on October 15, 2020. On that day, Sproat J. adjourned the Applicants’ motion. Given that there appeared to be a dispute about the interpretation of the June 1, 2020 Order, Sproat J. adjourned the Applicants’ motion to be heard by me on a date to be arranged through the trial office.
[8] This motion was heard by videoconference and therefore, I only had access to the materials that were electronically filed for this motion. The Applicants relied on their Notice of Motion and the following three affidavits: affidavit of Brenda Schott sworn on August 25, 2020; affidavit of Darlene Shearer-Smith, sworn on September 1, 2020; and reply affidavit of Brenda Schott sworn on October 20, 2020. The Respondent relied her affidavit sworn on October 2, 2020. Neither counsel filed any authorities.
THE PARTIES’ POSITIONS
[9] The Applicants submit that the Respondent has not complied with the Order dated June 1, 2020. They allege that although the Respondent did undertake work to remove some of the obstructions, this work was not completed by July 31, 2020.
[10] The Applicants submit that the Respondent has removed the following items from the right-of-way: the fire pit, much of the river rock and gardens, and the cedar rails along the stone walkway. However, they submit that these items were removed between July 31, 2020 and August 2, 2020.
[11] The Applicants submit that the Respondent has not removed: the rocks along the water’s edge, the shore well, or the cedar trees. Further, the Applicants submit that the big-O drainage pipe needs to be buried.
[12] The Respondent submits that she has complied with the June 1, 2020 Order. She acknowledges that she has not removed the shore well, but her position is that she was advised, through counsel, that it was not necessary to do so.
ISSUES
[13] Therefore, the issues before me are: (a) whether or not the Respondent has complied with para. 5 of the June 1, 2020 Order; and (b) whether or not the Applicants may take steps, at the expense of the Respondent, to remove any remaining obstructions from the right-of-way.
DISCUSSION
[14] On this motion, the Applicants have the onus to demonstrate on a balance of probabilities that the Respondent has not complied with the June 1, 2020 Order. In support of their respective positions, the Applicants and the Respondent have included numerous photographs as exhibits to the affidavits that have been filed for this motion. Some of these photographs are date-stamped and some are not. Some of the photographs are from 2018 or otherwise pre-date the June 1, 2020 Order. Other photographs are date-stamped in August 2020 and September 2020. Neither counsel raised during argument of the motion that some photographs were not date-stamped.
[15] The Applicants have not provided photographs of the right-of-way as it appeared on July 31, 2020 (60 days after the June 1, 2020 Order). The Respondent denies the allegation that she did not complete the remedial work until after July 31, 2020. Based on the record before me, I am not satisfied that the Applicants’ have demonstrated that the remedial work was not completed until after the 60-day deadline had passed.
[16] In the discussion below, I refer to some of the photographs that form parts of exhibits in the affidavits that were filed. Where I have included reference to page numbers, I am referring to the page number of the electronic document (the reason for this is that the affidavits filed for the motion were not completely paginated and the photographs were not otherwise numbered or identified).
[17] As set out in para. 99 of the Reasons for Judgment, there is no dispute that the Respondent does not have the obligation to maintain the right-of-way and that this is the responsibility of the Applicants. Further, there is no dispute that the parties have not entered into a maintenance agreement despite being encouraged to do so (see para. 100 of the Reasons for Judgment). The Applicants maintain they are willing to enter into a maintenance agreement but only after the right-of-way is cleared.
[18] As set out in para. 102 of the Reasons for Judgment, the intention of June 1, 2020 Order was that the Respondent remove any obstruction that she had placed on the right-of-way. Therefore, in order to be successful on this motion, the Applicants must demonstrate that that items that they have identified as remaining on the right-of-way are items that were placed on the right-of-way by the Respondent.
[19] As set out in their Notice of Motion, the Applicants allege that the right-of-way remains obstructed as a result of (a) the shore well; (b) cedar trees; (c) the big-O drainage pipe; and (d) rocks along the water’s edge.
(a) Shore well
[20] It is not disputed that the Respondent has not removed the shore well. However, the Respondent relies on a letter from the Applicants’ counsel, dated June 8, 2020. Her position is that according to this letter, it was not necessary for her to remove the shore well and she relied on this letter.
[21] The Applicants, on the other hand, state that the non-removal of the shore well was conditional on the other obstructions being removed. At para. 4 of Ms. Schott’s Affidavit sworn on October 20, 2020, Ms. Schott states:
- The shore well has not been removed. In the letter from Mr. Thomson dated June 8, 2020, he made a number of proposals including the fact that the shore well could remain if the other obstructions were removed. This concession was offered on the condition that all of the other obstructions on the right-of - way including the clump of cedars and all gardens be removed. The Respondent has not removed the obstructions, nor has she responded to the letter.
[22] I do not accept the evidence on Ms. Schott as to the contents of Mr. Thomson’s letter. This letter is attached as Exhibit B to the Respondent’s Affidavit sworn on October 2, 2020. It is a six-paragraph letter; however, the first paragraph of the letter is not relevant to this motion. The second to sixth paragraphs, which are relevant to this motion, read as follows:
We suggest that it may make sense for Ms. Malfara to enter into a Maintenance Agreement with the Schotts, Souter and Wyslobicky and the Steckles.
We understand that the cedar tree that is growing in the middle of the right-of-way should be removed however, the shore well does not need to be removed as apparently vehicles can back around the shore well.
Please advise as to whether the rocks along the shoreline will be removed and when that will occur. Currently the dock installed by the Schotts straddles the rock buffer. It makes sense to coordinate when this work will be done as the Schotts have posts that the contractor can utilize to move the dock away from the shoreline and they have a mechanism whereby they would be able to access the dock while this work is being undertaken.
We advise that our clients will take steps to ensure that the grass on the right-of-way is trimmed and that the trees along the boundaries of the right-of-way will be trimmed.
Please advise as to when Ms. Malfara intends to remove the obstacles in the right-of-way. [Emphasis added]
[23] On a plain reading of this letter there is no indication that the Applicants’ concession was conditional. The letter clearly indicates that the shore well does not need to be removed as “apparently vehicles can back around the shore well.”
[24] I find that the Applicants, through their counsel, indicated unequivocally and plainly that the shore well did not need to be removed. I find that it was reasonable for the Respondent to have relied on the contents of Mr. Thomson’s letter.
[25] In argument, Mr. Thomson submitted that his letter was intended to convey that the concession was conditional on the removal of the cedar trees. However, I do not accept this submission. First, Mr. Thomson cannot give evidence during submissions. Second, I note that this letter was copied to each of the Applicants. There is no evidence before me that there was any attempt to correct or qualify the concession as stated in this letter. What may have been intended to be conveyed was not what was actually conveyed. What was conveyed to the Respondent through counsel was that it was not necessary to remove the shore well.
[26] As will be discussed next, if the cedar trees on the right-of-way are removed, then this addresses what the Applicants have identified as the main impediment on the right-of-way.
(b) Cedars trees
[27] In my view, it is very unfortunate that the Applicants have taken the position that the right-of-way must be cleared before they enter into a maintenance agreement. The Applicants identify that the main impediment to their use of the right-of-way is this clump of cedars which are described to be in the middle of the right-of-way.
[28] In both of Ms. Schott’s affidavits, there is repeated reference to the clump of trees on the right-of-way which she states impede the Applicants’ ability to drive their vehicles down the right-of-way to the water’s edge. Specifically, at para. 10 of Ms. Schott’s Affidavit sworn on October 20, 2020, she states:
- The clump of cedars with the hostas is in the middle of the right-of-way and the land to the west is wet and there are ditches preventing vehicular access on the west side of the clump of cedars and the shore well prevents access for vehicles on the east side of the clump of cedars. The clump of cedars needs to be removed so that there is unimpeded access to the water.
[29] The clump of cedar trees can be seen in several of the photographs that have been included in the materials for this motion:
(a) A photograph which forms part of Exhibit D of Ms. Schott’s Affidavit sworn on August 25, 2020 located at page 47 of 58; (b) A photograph which forms part of Exhibit A to Respondent’s Affidavit sworn on October 2, 2020 located at page 8 of 20; and (c) A photograph which forms part of Exhibit A to Ms. Schott’s Affidavit sworn on October 20, 2020 located at page 8 of 12.
[30] There is no dispute that the cedar trees are on the right-of-way. The Applicants assert that they are unable to drive down the right-of-way as the cedar trees are in the way.
[31] The Applicants also assert that there are trees along the east side of the right-of-way which interfere with their ability to use the right-of-way. These trees can be seen several photographs that have been included in the motion materials:
(a) Photographs that forms part of Exhibit D to Ms. Schott’s affidavit sworn on August 25, 2020 located at page 45 of 58; page 48 of 58; page 49 of 58; page 50 of 58; page 51 of 58; page 52 of 58; and page 55 of 58; and (b) A photograph that forms part of Exhibit A to Ms. Schott’s Affidavit sworn on October 20, 2020 located at page 9 of 12.
[32] The Applicants maintain that that Respondent planted these cedar trees and the trees encroaching on the east side of the right-of-way. Ms. Schott opines that the clump of cedars and trees encroaching along the east side of the right-of-way are less than 10 years old and are not indigenous to the area. The Applicants therefore submit that as the Respondent has owned the property for more than 10 years, it should be concluded that the Respondent planted them and therefore, the Respondent should be held to be responsible for their removal.
[33] The Respondent maintains that she did not plant any of these trees. She also maintains that the hostas and large boulder near the cedar trees were already on the right-of-way when she acquired the property. (The Applicants also maintain that the Respondent is required to remove the hostas and boulder as well as they are obstructions on the right-of-way).
[34] I do not accept the Applicants’ submission. Ms. Schott is offering opinion evidence as to the age of the cedars and trees. She is also offering opinion evidence as to whether some of these trees are indigenous to the area. It has not been demonstrated that she is qualified to give opinion evidence.
[35] I am left with contradictory evidence. The Applicants assert that the Respondent planted the cedar trees, the hosta, the encroaching trees on the east side of the right-of-way and placed the boulder near cedar trees. The Respondent maintains that she did not. In order to be successful on the motion, the Applicants must prove on a balance of probabilities that that the Respondent failed to remove items that she had placed on the right-of-way. But they must first establish that it was the Respondent who planted the cedar trees, hostas, the encroaching trees and that the Respondent also placed the boulder.
[36] Based on the evidentiary record before me, I am not satisfied that the Applicants have discharged their onus. The Applicants have not demonstrated that these items were planted/placed on the right-of-way by the Respondent. Therefore, the Respondent was not required to remove them.
[37] As noted in paras. 98 and 99 of the Reasons for Judgment, the Applicants did not provide any evidence as to how the right-of-way was maintained prior to the Respondent acquiring 80 Golf Course Road. Further, in the initial motion, the Applicants did not dispute that when the Respondent acquired her property, the right-of-way was already narrowed by trees and bushes.
[38] In the record that is before me for this motion, the Applicants once again have not provided any evidence as to how the right-of-way was maintained prior to the Respondent acquiring her property.
[39] Much of the Applicants’ current complaints, in my view, could have been addressed by a maintenance agreement. Despite the Court’s encouragement, the parties have not entered into a maintenance agreement. The Court cannot force them to do so, but it ought to be abundantly clear to the parties that they need one.
[40] The maintenance of the right-of-way is the obligation of the Applicants as they hold the dominant tenement (see para. 99 of Reasons for Judgment). Unless the parties have reached an alternate agreement, the Applicants may take the necessary steps to remove the cedar trees located on the right-of way, and also remove the hostas and boulder located near the clump of cedar trees on the right-of-way. They may also take the necessary steps to trim or remove the encroaching trees along the east side of the right-of-way (I note that in the Applicants’ counsel’s letter dated June 8, 2020, it was stated that the Applicants would trim the grass and trim the trees. It may be that trimming these trees is sufficient).
[41] I now turn to who is responsible for the cost of removing these cedar trees, hostas, boulder, and either trimming or removing the encroaching trees. The Applicants have not demonstrated that the Respondent planted these items. There is no dispute that the Applicants have the obligation to maintain the right-of-way. Therefore, the Applicants shall be responsible for the cost of removing the clump of cedar trees on the right-of-way, removing the hostas and boulder near the clump of cedar trees, and trimming or removing the encroaching trees on the east side of the right-of way.
(c) Big-O drainage pipe
[42] The Applicants submit that the Big-O drainage pipe has either not been buried or if it has, it has not been buried properly. The Respondent submits that it has.
[43] At para. 9 of Ms. Schott’s affidavit sworn on August 25, 2020, she states
Further, the water from the eaves troughs on Malfara’s cottage and garage drain to a “Big O” which is now buried under the right-of-way; however, although tripping hazards have been eliminated the runoff from the “Big O” has washed out the bottom portion (approximately half) of the right-of-way and this portion of the right-of-way is now impassable due to mud. The Applicants desire to have the “Big O” buried properly and to run to the water’s edge so that the right-of-way will not be washed out and be unusable.
[44] The Respondent acknowledges that after the Big-O drainage pipe was buried, the top of the pipe became exposed. By way of explanation, the Respondent states that the topsoil was washed away. However, she also explains that she has covered the exposed portion with other material which she says will resist being washed away. Exhibit E of the Respondent’s affidavit shows photographs which confirm her statement. These photographs are located at page 19 of 20 of her affidavit.
[45] Based on the record before me, I do not find that the Applicants have demonstrated that the bottom half of the right-of-way is impassible as asserted by the Applicants. In my view, the Respondent has complied with the June 1, 2020 Order. It appears that the Applicants want the Respondent to be compelled to take further steps, that is, to extend the Big-O drainage pipe so that it runs to the water’s edge. This request falls outside the scope of this motion as I have determined that the Respondent has complied with the June 1, 2020 Order.
(d) Rocks at the water’s edge
[46] The Applicants have two complaints: infilling of Chesley Lake that has pushed back the original limit of Chesley Lake and the placement of rocks/stones at the water’s edge.
[47] With respect to the infilling, the Respondent’s position is that this does not fall within the scope of the June 1, 2020 Order. She submits that the infilling had been done prior to her acquiring the property. The Applicants have not provided evidence that it was the Respondent who was responsible for the infilling. Based on the record before me, the infilling is not captured by the June 1, 2020 Order.
[48] With respect to rocks at the water’s edge, the Applicants submit that the stones were placed there by the Respondent and it makes it difficult to access their dock. The Respondent does not dispute that she placed these rocks. (I shall use the words ‘rocks’ and ‘stones’ interchangeably).
[49] The Respondent maintains that that these stones fall outside of the right-of-way and therefore fall outside of the June 1, 2020 Order. Further, she submits that this stone work was undertaken with the approval of the Grey Sauble Conservation Authority (“GSCA”) and that any work to remove these rocks can only be undertaken with GSCA’s approval and that the Applicants have not obtained such approval.
[50] The Respondent also submits that at the original argument of the Application, the Applicants did not request that these rocks be removed. The Applicants’ counsel acknowledged this as well, but also submits that the rocks make it difficult to access the Schotts’ dock.
[51] The Applicants rely on a survey, dated August 18, 2019, which forms Exhibit B of Ms. Schott’s affidavit sworn on August 25, 2020. The location of the rocks on the survey is depicted the word “STONES.” This survey shows the dock used by the Schotts (on the left side the STONES) and the dock used by the Respondent (on the right side of the STONES). The Respondent argues that the survey clearly shows that the stones at the water’s edge fall outside the right-of-way.
[52] From a review of the survey, there appears to be merit to the Respondent’s position. As shown in this survey, the STONES are situated north of the northerly boundary of the right-of-way and north of the limit of Chesley Lake.
[53] The Applicants allege that when the Respondent obtained approval from GSCA to undertake this stonework, she obtained permission under false pretences. Specifically, at paras. 6 and 7 of Ms. Schott’s reply affidavit sworn on October 20, 2020, Ms. Schott states:
The modification of the shoreline undertaken by the Respondent was based on a number of false representations to the Conservation Authority, including but not limited to, the width of the property, the location of the shore well and the location of the right-of-way.
Prior to the modifications to the shoreline undertaken by the Respondent we were able to access the water without fear of injuring ourselves as we stepped into the water. This is no longer the case. The jagged rocks placed on the top of the gabion wall by the Respondent need to be removed and replaced with grass to be in compliance with the application to the Conservation Authority. The Respondent has also placed jagged rock in the water for about 8 to 10 feet from the shore making it impossible to walk into the water as we previously did.
[54] The Applicants have not provided any evidence to support the alleged misrepresentations of the Respondent.
[55] The Respondent correctly points out that GSCA is not a party to this proceeding. Further, the Respondent submits that any further work or modifications made to the stone work cannot be made without the prior approval of the GSCA.
[56] In argument, the Applicants’ counsel made it clear that the Applicants were not requesting that the Court determine whether the stone work was or was not completed in compliance with the GSCA permit.
[57] Whether the stone work was complied with the GSCA requirements clearly falls outside of the parameters of this motion so I do not make any Order with respect to the removal or modification of the rocks. Even if it did fall within the scope of the motion, I would still not make an Order for two reasons. First, the Applicants have not provided evidence with respect to the alleged misrepresentation or the specifications required by the GSCA. Second, the GSCA is not a party to this motion.
SUMMARY
[58] The Applicants have the onus to demonstrate that the Respondent has not complied with the June 1, 2020 Order. Although the Respondent did not remove the shore well, I find that she was entitled to rely on the letter, dated June 8, 2020 from the Applicants’ counsel which clearly stated that it was not necessary for the Respondent to remove the shore well.
[59] With respect to the clump of cedar trees on the right-of-way, the hostas and the boulder near the cedar trees, and the encroaching trees on the side of the right-of-way, the Respondent was not obliged to remove these items. The Applicants have not demonstrated that the Respondent placed these items on the right-of-way and therefore, the Applicants have the obligation to address these obstructions as this is a maintenance issue.
[60] Unless the parties agree otherwise, the Applicants may, at their expense, take the necessary steps to remove the clump of cedar trees, the hostas and boulder near the cedar trees, and to trim or remove the encroaching trees on the east side of the right-of-way.
[61] With respect to the Big-O drainage pipe, the Respondent has complied with the June 1, 2020 Order.
[62] With respect to the rocks/stones at the water’s edge, these appear to fall outside of the right-of-way I make no Order for the removal or modification of these rocks.
[63] With respect to the issue of costs, I strongly encourage the parties to resolve this issue. If they cannot, costs shall be determined by written submissions according to the directions set out in the Order below.
ORDER
[64] For the reasons set out above, I make the following Order:
Unless the parties agree otherwise, the Applicants may, at their expense, take the necessary steps to remove the clump of cedar trees on the right-of way; remove the hostas and the boulder near the clump of cedar trees, and trim or remove the encroaching trees along the eastern boundary of the right-of-way.
The Applicants’ motion is otherwise dismissed.
If the parties are unable to resolve the issue of costs, then costs shall be determined in writing and submissions shall be served and filed in accordance with the following directions: i. Any party seeking costs shall serve and file their written submission by 4:30 p.m. on March 12, 2021. These written submissions shall be in 12-point font, double-spaced and shall not exceed two pages. ii. Responding written costs submissions shall be served and filed by 4:30 p.m. on March 26, 2021. These written submissions shall be in 12-point font, double-spaced and shall not exceed two pages. iii. There shall be no reply submissions. iv. Written costs submission shall be filed by email to my judicial assistant at the following email address: sherry.mchady@ontario.ca v. The page limit referred to above does not include Bills of Costs, any relevant Offers to Settle, or authorities.
Save and except for the issue of costs arising from this motion, I am not seized of this matter.
This Order takes effect from the date of this Endorsement and without the necessity of the Order being issued and entered.
Kumaranayake J.
DATE: February 19, 2021