COURT FILE NO.: CV-21-50-00
DATE: 20210628
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Daniel Louis Gould, Plaintiff
AND:
James Neil Simpson and Marie Marguerite Lucie Simpson a.k.a. Lucie Simpson a.k.a. Marguerite Lucie Simpson, Defendants
BEFORE: Justice C. Boswell
COUNSEL: Audrey Doxtdator, counsel for the Plaintiff
Daniel J. Wyjad, counsel for the Defendants
HEARD: June 24, 2021 by videoconference
ENDORSEMENT
Overview
[1] The defendants are building a home on a lot they purchased from the plaintiff in 2019. The plaintiff lives next door to them and he complains that the defendants’ excavation activities have (1) encroached on his lands; and (2) resulted in significant flooding of his lands, including his sawmill and driveway.
[2] The plaintiff moves for urgent injunctive relief. He asks the court to make the following orders:
(a) Enjoining the defendants from trespassing on his lands;
(b) Enjoining the defendants from excavating, constructing or otherwise manipulating their own lands or waterways in any way that might reasonably affect the plaintiff’s lands;
(c) Compelling the defendants to remove any drainage system that directs water onto the plaintiff’s property; and,
(d) An order directing the defendants to grant access to their lands to the plaintiff’s expert environmental engineer to permit him to conduct an investigation and prepare a report regarding the impact of any excavations undertaken by the defendants on their lands.
[3] The plaintiff’s motion came on for a hearing before Vallee J. on June 17, 2021. At that time the defendants sought an adjournment to investigate the matter and to prepare and file fulsome responding materials. Justice Vallee granted a short adjournment, noting that the plaintiff’s materials had been short-served.
[4] The motion came back on before me on June 24, 2021. The defendants had filed some materials prior to the hearing before Vallee J. and they supplemented those materials prior to the argument before me. Nevertheless, they sought a further adjournment. The basis for their request on this latter occasion was a professed need to conduct cross-examinations.
[5] I advised the parties that I was prepared to grant an adjournment of the motion to permit cross-examinations given that there are significant disparities in the parties’ materials regarding (1) the extent of the excavations undertaken by the defendants; and (2) whether there was any flooding in the springs of 2020 and 2021 and, if so, what the extent and source of that flooding was.
[6] At the same time, I advised the parties that I would hear their arguments about whether any form of interim interim relief was warranted. Brief argument following on the issues that the plaintiff’s counsel identified as the most urgent. In particular, counsel asserted that it is most urgent to enjoin the defendants from conducting any further excavation or landscaping on their lands and to authorize the plaintiff’s expert to have access to the property.
[7] The plaintiff’s counsel contends that she needs an expert’s report to understand the extent of the excavations done by the defendants and the effect that the excavations are having on waterflow over the parties’ lands. And she says that it will be much more difficult for the expert to conduct his investigations if the defendants carry on with landscaping plans, such as laying sod or planting shrubs.
[8] The defendants’ counsel submits that there is no urgency to any of the relief sought. The defendants say that they are no longer conducting any excavating. They deny that their actions have resulted in any flooding and, in any event, there is no question that the alleged flooding was limited to the springtime. They submit that there should be no significant impact on an expert’s investigation should they carry on with their landscaping plans.
[9] For the reasons that follow, I order the following, on an interim interim basis:
(a) The defendants are enjoined from trespassing on the plaintiff’s lands;
(b) The defendants shall permit reasonable access to their property to the plaintiff’s expert, on reasonable notice, to permit the expert to conduct such investigations as he considers appropriate in order to prepare a report on the extent of the excavations engaged in by the defendants and their impact on the flow of water over the lands of the defendants and the plaintiff. The following conditions shall apply:
(i) Arrangements for the expert’s attendance shall be made through counsel;
(ii) Attendances shall be limited to weekdays, between the hours of 9 a.m. and 5 p.m.;
(iii) Access shall not include entry to the defendants’ residence; and,
(iv) No destructive testing of any kind shall be engaged in, without further order of the court.
[10] A short overview of the relevant circumstances will put this interim interim ruling into perspective.
Background
[11] The parties are neighbours in Huntsville. Until April 2019, the plaintiff was, in fact, the owner of both parties’ lands. He severed off a portion of his lands which he sold to the defendant, James Simpson. Mr. Simpson later transferred the land he purchased to himself and his wife, Lucie Simpson, as joint tenants. The plaintiff’s parcel is known municipally as 203 Concession 4+5, Huntsville. The defendants’ parcel is 191 Concession 4+5.
[12] The properties are both reasonably large. The plaintiff indicates that the defendants’ lot has a depth of 550 feet, but I am not clear on the frontage, so I am unable to calculate its total area. The plaintiff’s lot is significantly bigger.
[13] Both lots are wooded and they share a similar topography. They both front onto Concession 4+5. The area of the lots closest to the road is low-lying and marshy. The back of the lots is higher ground.
[14] The defendants purchased the property with the intention of constructing a home on it. The home appears to now be largely constructed.
[15] The defendants necessarily engaged in a certain amount of excavation in order to clear a sufficient area upon which to construct their home. The area they selected to build on was much closer to the road than the plaintiff anticipated. He expected that they would, like him, construct their residence on the higher ground towards the rear of the lot.
[16] In addition to excavating the area where the home was to be built, and its immediate environs, the defendants excavated an area of marshland near their home in order to create a pond.
[17] It is agreed that the area excavated for the pond encroaches onto the plaintiff’s lands. The extent of the encroachment is not agreed upon but by either side’s account, it is significant.
[18] The plaintiff swore an affidavit in support of his motion on June 11, 2021. He described the defendants excavating an area on his property of about 750 square metres, which has created a large pond that is about 2 metres deep. He said the defendants removed “countless” trees in the process. The plaintiff says he needed those trees to earn a living; he is a self-employed craftsman of specialty wood products.
[19] According to the plaintiff, his repeated requests that the defendants restore his lands to the way they were have gone unanswered. Instead, the excavations have been ongoing. He says they have resulted in severe flooding of his property, including his driveway and his sawmill in the springs of 2020 and 2021.
[20] In response to the plaintiff’s motion, the defendants filed the affidavit of Lucie Simpson sworn June 16, 2021. Ms. Simpson attributes the encroachment on the plaintiff’s lands for the purpose of constructing the pond to an error on the part of the contractor they hired to create the pond. While an encroachment is conceded, the defendants believe the plaintiff is exaggerating its size and impact.
[21] The defendants deny that they cleared the land of any trees with commercial value. They deny that their actions have resulted in the diversion of water from their property to the plaintiff’s property and they deny that their actions have resulted in flooding on the plaintiff’s lands.
Discussion
Injunctive Relief
[22] Two forms of interlocutory injunction are sought on this motion. The first seeks to enjoin the defendants from further trespassing on the plaintiff’s lands. The second seeks to enjoin the defendants from conducting any further excavation or landscaping on their lands. I will consider each in turn.
[23] The test to be applied to an application for an interlocutory injunction is well-known. It is found in the often-cited decision of the Supreme Court in in RJR-MacDonald Inc. v. Canada (Attorney General), 1 [1994] S.C.R. 311. An applicant for an interim injunction must establish a three-part test:
(a) That there is a serious issue to be tried;
(b) That the applicant would suffer irreparable harm should the injunction not be granted; and
(c) That the balance of convenience favours granting the injunction.
[24] There is no question that there is a serious issue to be tried in this case. No one suggests otherwise. The “serious issue” threshold is a low one. For most kinds of cases, it requires only that a moving party establish that his or her case is not frivolous or vexatious. The threshold is met here.
[25] The application of the other two prongs of the RJR-MacDonald test leads to different results in terms of the two forms of injunction sought.
The injunction against trespass
[26] In cases where a party’s property rights are being interfered with, the requirement to establish irreparable harm tends to be given less weight. This is because property rights are considered to be sacrosanct and injunctive relief is strongly favoured where they are interfered with. See Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), [2003] O.J. No. 3669, especially paras. 24-27.
[27] In this instance, there is no dispute that the defendants have interfered with the plaintiff’s property rights in the course of constructing their pond. They say they have no intention of interfering further in any way. In my view, regardless of whether the plaintiff would suffer irreparable harm by any further interference, an injunction is strongly favoured in the circumstances.
The injunction against further excavation
[28] Unlike the case where a party interferes with another’s property rights, an injunction is not presumptively indicated where what the plaintiff seeks is an order constraining another from dealing with his or her own property.
[29] The defendants say that they are finished excavating. They are now in a landscaping phase. I accept that evidence for the purposes of this ruling. The plaintiff’s lawyer contends that they must be still be stopped from conducting any further alterations to their lands whatsoever, including landscaping, because any further works may interfere with her expert’s ability to conduct his investigations.
[30] The difficulty with the plaintiff’s position in this respect is that it is not supported by the evidentiary record. No evidence has been provided by the expert, or anyone on his behalf, to suggest that landscaping by the defendants would impede his ability to conduct his investigation.
[31] I am not able to find that irreparable harm will result from landscaping works when there is no evidence in the record to support why that might be.
[32] There is similarly no evidence to support an assertion that landscaping works by the plaintiffs will somehow cause further harm – by flooding or otherwise – to the plaintiff’s lands.
[33] In my view, the sanctity of property rights cuts both ways in this case. The defendants’ right to use their property as they see fit ought not to be lightly interfered with. Here, the evidence fails to establish that an interim interim injunction is justified to stop the defendants from carrying on with landscaping works on their property. The balance of convenience does not favour granting an injunction, at this point, to enjoin the defendants’ activities on their own lands. The balance may, of course, shift, depending on the findings of the plaintiff’s expert. I turn now to the expert’s access to the defendants’ property.
Access to the Defendants’ Property
[34] In my view, the plaintiff’s request that its expert have access to the defendants’ property is entirely valid. Absent expert assistance, the court will be in a very difficult position to determine whether any of the works carried out by the defendants on their lands have affected the flow of water over their lands or those of the plaintiff, or whether they have affected the water table more generally.
[35] Moreover, expert assistance will be required to create any plan of remediation, including, but not limited to, the remediation of the pond that presently encroaches on the plaintiff’s lands.
[36] Rule 32.01(1) provides the court with the jurisdiction to make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding.
[37] Rules 31.01(2) and (3) provide the jurisdiction for a range of ancillary orders that may be made to facilitate the inspection contemplation under r. 32.01(1). These include authorizing entry onto a property; permitting the taking of measurements, samples or photographs; and the conducting of tests and experiments.
[38] In my view, the interests of justice will be advanced by permitting the plaintiff’s expert access to the defendants’ lands. The access I have permitted will be minimally intrusive and will cause little, if any, prejudice to the defendants.
[39] An order shall go, accordingly, on the terms I set out in para. 9 above.
[40] Costs of this interim interim motion shall be reserved to the judge hearing the motion on an interim basis, once cross-examinations are completed.
C. Boswell J.
Date: June 28, 2021