Kirkby & Torok v Otulakowski., 2021 ONSC 3298

Court File and Parties

COURT FILE NO.: CV-20-00634930-0000

DATE: 20210505

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CANDICE CHRISTINE KIRKBY and CHRISIAN TOROK

Applicants

– and –

RANDALL URIAH OTULAKOWSKI and MONICA HELEN OTULAKOWSKI

Respondents

Alexander Melfi, lawyer for the Applicants

Self-represented and acting in person

HEARD: April 28, 2021

ENDORSEMENT

DIAMOND J.:

Overview

1The applicants and the respondents are neighbours. The applicants purchased 61 Maughan Crescent, Toronto, Ontario (“61”) in February 2015. The respondents purchased 59 Maughan Crescent, Toronto, Ontario (“59”) in September 2013.

2There is a seven foot wide strip of land that runs between and adjacent to the semi-detached houses located on 59 and 61. That strip of land runs from the front yard curb to the rear of the property, although the first (approximate) fifteen feet from the front yard curb is owned by the City of Toronto.

3Both 59 and 61 are subject to express, registered rights of way over the seven foot wide strip of land. While the two rights of way are not identical, they are similar. Each property (a) owns a three foot, six inch wide portion of the strip of land immediately adjacent to each house, and (b) grants the neighbouring property a right of way over the remaining three foot, six inch strip of land.

4The applicants commenced an application seeking, inter alia, an order confirming that their right of way over the three foot, six inch portion of the respondents’ strip of land is not limited in any way, including parking and driving a vehicle on and over the mutual driveway, and accessing the applicants’ rear yard with and without a vehicle. The applicants also seek various declaratory relief that the respondents have obstructed and otherwise interfered with the purpose and use of the applicants’ right of way.

5For their part, the respondents oppose the relief sought by the applicants, and have brought their own application seeking, inter alia, (a) a declaration that the applicants’ right of way is limited to driving a vehicle over the strip of land to enable access (with and without a vehicle) to both rear yards, (b) a declaration that the rights of way do not include parking for any duration on the mutual driveway or right of way, and (c) an order mandating the applicants to remove all substantial obstructions from their portion of the right of way at the applicants’ sole expense.

6The relief sought by the parties narrowed as the applications were litigated. Both applications were argued before me on April 28, 2021, and by that date the only issues to be determined by the Court were:

(a) whether the applicants’ right of way includes the right to park their vehicle on the mutual driveway in front of the two houses (as no one could exit a vehicle if parked in between the two houses); and,

(b) whether the applicants should be ordered to remove various items which the respondents claim to amount to a substantial interference with their own right of way.

7At the conclusion of the hearing of both applications, I took my decision under reserve.

8The respondents have tendered evidence that the mutual driveway between the properties was created within two mortgages registered in 1924 against title to both 59 and 61 respectively. The wording in both mortgage instruments (which the respondents described as “root deeds”) is essentially identical, and describes the strip of land between the properties being subject to the following right of way:

“…a Right of Way, at all times, in common with others now or hereafter entitled thereto, over, along and upon a strip of land three feet, and six inches (3’6”) in width.…[t]he said strips of land to form together a joint Right of Way seven feet (7’) in width.”

9In 1987, a transfer of title of 61 occurred, and the transfer instrument expressly provided that 61 is:

“TOGETHER WITH A RIGHT OF WAY at all times in common with others now or hereinafter entitled thereto over, along and upon a strip of land three feet and six inches (3’6”) in width immediately adjoining the south-westerly limit of the aforesaid parcel of land and extending south-easterly from the said limit of Maughan Crescent to a line drawn on a course north thirty-eight degrees and forty-seven minutes (38° 47’) east through a point in the said south-westerly limit of the said parcel distant ninety-six feet (96’) measured south-easterly thereon from the said limits of Maughan Crescent.

AND RESERVING a right of way at all times for all persons now or hereafter entitled thereto over along and upon a second strip of land comprising that party of the south-westerly three feet and six inches (3’6”) of the aforesaid parcel of land extending from the said limit of Maughan Crescent to the aforesaid line drawn on a course north thirty-eight degrees and forty-seven minutes (38° 47’) east.

The said strips of lands to form together a joint right of way seven feet (7’) in width, the same being appurtenant to the said parcel of land and the adjoining lands to the south-west thereof.”

10Title to 59 was transferred in 1999, and the transfer instrument for that transaction expressly provided that 59 is:

“TOGETHER WITH a Right-of-Way over 3 feet, 6 inches immediately adjoining the North-easterly limit of the aforesaid land and extending South-easterly from the said limit of Maughan Crescent to a line drawn on a court North 38 degrees, 47 minutes East through a point in the said North-easterly limit of the aforesaid parcel distant 96 feet measured Southeasterly thereon from the said limit of Maughan Crescent.

AND RESERVING hereout a Right-of-Way over that part of the Northeasterly 3 feet, 6 inches of the aforesaid parcel extending from the said limit of Maughan Crescent to the aforesaid line drawn on a course North 38 degrees 47 minutes East.”

11While I will have more to say about the applicants’ position hereinafter, the two most recent legal descriptions of both right of ways do provide that the applicants’ right of way is “over along and upon” the strip of land between the properties, whereas the respondents’ right of way is “over” the strip of land between the properties..

Summary of Relevant Facts

12To begin, the applicants gave evidence about the contents of the MLS listings for both 59 and 61 prior to the parties’ respective purchases of the properties. In my view, as neither party is requesting an order granting a prescriptive easement, and both parties are focused upon the interpretation of the existing, registered rights of way, prior MLS representations made by former owners of 59 and 61 are of no relevance to the disposition of these applications.

13The only access to the rear of 61 is through and down the strip of land between the properties. While 59 enjoys the same access to the rear, the applicants submit that 59 also has access to its rear yard from the back of the property off Dundas Street East.

14The respondents gave evidence that when they sought approval from the City of Toronto (“City”) to construct a garage at the rear of the property, the City refused to approve the respondents’ application on the basis that the rear access from Dundas Street East was not permitted as that area was created solely for pedestrian traffic. While the respondents did not produce any direct evidence from the City in their responding materials, they did produce an email from the City of Toronto which stated as follows:

“The ROW was created for access to the rear of the houses. It would not have been created if it was solely for pedestrian traffic since there is adequate land beside each house for that purpose. Toronto Building viewed this as the driveway. The Zoning By-Law states that parking is to be provided behind the front wall. Since you are not able to park in the ROW, the parking has to be at the rear.”

15In any event, the rear of 61 has historically been used for parking a vehicle, and the only way to drive a vehicle to the rear of the property is over the seven foot wide strip of land. While there once was a garage in the rear of 61, it was subsequently removed.

16The prior owner of 61 had typically parked “more or less” on the mutual driveway in front of the houses. I use the term “more or less” as it appears from the photographs and surveys produced by the parties that at least a small portion of a vehicle would be parked along the fifteen feet boulevard section owned by the City.

17For a few years, the applicants and the respondents alternated the parking of their respective vehicles on the mutual driveway in front of the houses. They reached an informal agreement whereby each party would park their vehicle on the mutual driveway for alternating six months periods throughout the year. If a visitor was staying overnight and needed to park his/her car, the applicants or respondents would relocate their vehicle to allow that visitor to use the mutual driveway for the night.

18The informal agreement was subsequently varied by the parties to a quarterly rotation beginning in June 2017. The applicants submit that the City has never issued any citations or warnings to them as a result of parking their vehicle on the mutual driveway/right of way.

19Since the spring of 2019, the parties’ relationship deteriorated. This slow breakdown began with the applicants’ installation of a new air conditioning unit on the southwest side of their house approximately seven feet above the mutual driveway. This caused the respondents to complain to the City that the air conditioning unit breached the City’s by-laws.

20Since then, the parties have participated in various acts which have sped up the deterioration of the relationship. The respondents removed the large amount of paving stones at the front of the mutual driveway to install thorn bushes directly in front of the strip of land which is subject to the rights of way. The respondents ultimately removed the thorn bushes but did not re-install the paving stones, choosing to replace them with grass padding.

21The respondents complain that there are several obstructions on the rights of way caused by the applicants, including a shed hanging on the side of 61, protruding stairs to the rear deck of 61, and a clothing dryer vent. The applicants note that all of these items were in existence before they purchased 61.

22The respondents also complain about a fence installed by mutual agreement in 2015 which encroaches into the mutual driveway. The applicants had replaced an existing old chain link fence (with the respondents’ consent) in 2015.

Issue #1: Does the applicants’ right of way include the right to park their vehicle on the mutual driveway in front of the two homes?

23As stated above, the rights of way are created by express grant within instruments registered on title to the properties. As such, the Court’s task in deciding Issue #1 is interpretative. I am guided by Justice Doyle’s comments in Jordan v. Beauchamp-Kiss 2018 ONSC 2677:

“In interpreting the grant of an easement and right of way, Anne Warner La Forest, Anger & Honsberger Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2012), at 17:20.30(a), states:

1. The grant must be construed in the light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect to the intention of the Parties.

2. If the language of a grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.

3. The past behaviour of the Parties in connection with the use of the right of way may be regarded as a practical construction of the use of the way.”

24The respondents rely upon the Court of Appeal for Ontario’s decision in De Jocas v. Moldow Enterprises Inc. 2019 ONCA 389, and in particular the following passage:

“Evidence ought to have been placed before the court as to the title history of the properties involved. In particular, evidence ought to have been adduced as to the genesis of Brewers Close and, to the degree that it was possible to do so, the precise dimensions and locations of it, as reflected in the title documents or as established by extrinsic evidence.”

25The respondents rely upon the above excerpt in support of their submission that the Court should review the original 1924 mortgages as the “root deeds”, and use the wording in those original registered instruments when interpreting the rights of way. In my view, this is not necessary, as the rights of way have been varied and updated since 1924, and as stated these applications are not concerned with prescriptive easements.

26There is really no dispute that, under both rights of way, both parties have the ability to drive a vehicle over the full length of the strip of land between the houses. Even if the respondents did have the right to access their property through Dundas Street East (a fact which is, at most, unclear on the record before the Court), they have and will continue to enjoy the benefits of 59’s right of way, which as an express grant can rarely be extinguished in any other manner other than by express release. I find that neither party has abandoned their respective right of way through any conduct since they purchased their respective properties.

27The question posed by the applicants is really whether the applicants’ have an ancillary right to park their vehicle on the right of way.

28In my view, while the parties and predecessor owners may have enjoyed and/or agreed to occasionally park vehicles on the right of way, as both rights of way continue to exist, any purported ancillary right to park a vehicle on the mutual driveway would substantially interfere with and undermine the respondents’ right of way. Absent clear evidence of the respondents’ right of way being abandoned or extinguished (which is not supported by the record before me), the respondents maintain the ability to use and enjoy their own right of way.

29The applicants urge this Court to find that the additional words “along and upon” must mean something when compared to the word “over”. I cannot agree with this submission, as to afford the applicants the interpretation they seek would effectively render the respondents’ right of way useless and unenforceable. While the Court acknowledges that the applicants’ right of way is “over, along and upon” the seven foot strip of land, the additional words “along and upon” cannot mean the right to park a vehicle indefinitely as this would impede the respondents’ own right of way “over” the mutual driveway.

30For these reasons, I find that the applicants’ right of way does not include a right (ancillary or otherwise) to park their vehicle anywhere on the seven foot strip of land including the mutual driveway.

31The answer to Issue #1 is therefore “no”.

Issue #2: Should the applicants be ordered to remove various items which the respondents claim to amount to a substantial interference with their own right of way?

32The applicants submitted in their factum that in the event parking rights were not awarded to them, they would do whatever was required to ensure that the mutual driveway is free from any obstructions which would prevent them (or for that matter the respondents) from driving a vehicle down the length of the mutual driveway for the purpose of parking vehicles in the rear yard. As such, the disposition of Issue #2 may be moot.

33The respondents bear the burden of proof that any item installed or situated on the seven foot strip of land between the houses substantially interferes with the respondents’ right of way, and specifically the respondents’ reasonable use of the property for the right of way’s express purpose or ingress and egress.

34Keeping the mutual driveway free and clear from obstructions is now in both parties’ best interests. While I do not necessarily agree with the respondents that the items complained of (the air conditioning unit, the deck stairs, the shed, the clothes dryer vent and the new fence) substantially interfere with the respondents’ right of way, the reality is that the applicants have already undertaken to remove any obstructions that prevent a vehicle from being driven down the mutual driveway to the rear yard.

35As such, I order that both parties ensure that any and all obstructions precluding a vehicle from being driven down the mutual driveway be removed and/or relocated.

Costs

36In the event the parties are unable to reach an agreement on the issue of the costs of both applications, they may serve and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:

a) the respondents shall have 10 business days from the release of this Endorsement to serve and file their written costs submissions; and,

b) the applicants shall have 10 business days from the receipt of the respondents’ written costs submissions to serve and file their own responding written costs submissions.

Diamond J.