COURT FILE NO.: CV-19-00000355-0000
DATE: 2021/08/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marie Giacomin and Jeffrey Giacomin, Plaintiffs
AND
Patrick Weighell and Susan Weighell, Defendants
BEFORE: Justice H. Williams
COUNSEL: James McCarthy, for the Plaintiffs
Roberto Ghignone, for the Defendants
HEARD: August 11, 2021
ENDORSEMENT
[1] The parties live in what appear from the photographs in evidence to be large and beautifully landscaped homes on the shore of Lake Ontario in Kingston. Unfortunately, their homes are located beside each other.
[2] The parties are battling over a dock and a boat ramp. The Weighells say the dock and the boat ramp are located entirely on their property or on Crown land and have been for 50 years. The Giacomins say the boat ramp encroaches on their property.
[3] The Giacomins are asking for an injunction to prevent the Weighells from trespassing on their property, which they say includes a portion of the boat ramp. The Giacomins want the Weighells to be required to remove steel grates that are attached to the ramp and to be prevented from installing the grates in the future. The Giacomins also want the Weighells to be prohibited from launching watercraft from the ramp and from harassing the Giacomins.
[4] The Giacomins have set their action down for trial. Consequently, they need leave to bring their motion.
[5] The authorities make it clear that setting a matter down for trial is not a mere technicality. Before any further interlocutory proceedings will be permitted after an action has been set down, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under s. 48.04(1) would be manifestly unjust. (Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, at para. 10.)
[6] The Giacomins argue that, after they set the action down for trial, the Weighells refused to comply with notices under the Trespass Act, attached steel grates to the Giacomins’ side of the boat ramp and encroached on the Giacomins’ property when they planted a hedge. The Giacomins also point to recent criminal charges laid against the Weighells’ son. The Giacomins argue that these events all constitute unexpected changes in circumstances. They also say their motion should be heard because the Weighells’ worsening conduct is interfering with the Giacomins’ rights and enjoyment of their property.
[7] Although it is clear from the evidence and the submissions of counsel that there is an on-going and possibly escalating dispute between the parties, for the following reasons, the Giacomins have not satisfied me that there have been substantial or unexpected changes in circumstances since they set down their action such that it would be unjust for their motion not to be heard:
- The conduct the Giacomins characterize as trespass is the same conduct described by the Giacomins in the statement of claim they issued against their neighbours in November 2019. The installation of the steel grates is also described in the statement of claim. In the statement of claim, the Giacomins also complained about boats using the ramp travelling at high speeds and alleged that the Weighells were harassing them.
- The Weighells included a photograph of the offending hedge in their motion record. The hedge is located on the Weighell side of a steel fence installed by the Giacomins. The Weighells installed a plastic barrier between the hedge and the Giacomins’ fence so that mulch would not spread onto the Giacomins’ property. There is no evidence that the hedge encroaches on the Giacomins’ property; the evidence supports the opposite conclusion.
- I see no connection between the charges against the Weighells’ son and the issues in the litigation. I consider it unfortunate that the Giacomins attempted to use these charges as leverage in this litigation rather than following the more compassionate approach of other neighbours described in para. 53 of Patrick Weighell’s affidavit. The charges should not have been raised on this motion.
[8] The Giacomins argue that their motion would not derail the pre-trial of their action, which is scheduled for October, or have any effect on a trial date. I agree. This has no bearing, however, on my conclusion that they have not met the test for leave under Rule 48.04(1).
[9] The Giacomins’ request for leave is denied.
[10] Although setting an action down for trial is not a mere technicality, I suspect the parties, and the Giacomins in particular, will feel that, despite their lawyers’ hard work on this motion, a technicality prevented them from being heard. Consequently, and in the hope that doing so may assist the parties to see parts of their case in a different light, I am going to set out what I would have done if leave had been granted. I would have dismissed the motion. The three-part test for an interlocutory injunction is set out in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311:
- I was satisfied there was a serious issue to be tried in this case. Although the dock and boat ramp were originally built in 1971, they were rebuilt in 2019. The Weighells say the footprint of the dock and boat ramp is the same now as it was in 1971. The Weighells also have a 2019 survey which shows that the dock and boat ramp do not encroach on the Giacomins’ property. The Giacomins, however, have a 2019 survey which shows that a portion of the boat ramp does encroach. Whether the boat ramp and dock are located in part on the Giacomins’ property and, if so, the duration of the encroachment (i.e., whether it began in 1971 or 2019) are, in my view, serious issues to be tried.
- While I accept that the tension between these neighbours is unpleasant, and undoubtedly more so during the summer season when they are more likely to swim and engage in other water sports, the Giacomins did not satisfy me that they would suffer irreparable harm if the injunction they were seeking was not granted.
- Having considered the apparent strength of the Giacomins’ case and all of the evidence, including the length of time a dock and boat ramp appear to have been in place, I would have concluded that the balance convenience favoured maintaining the status quo pending trial.
Disposition
[11] The Giacomins’ request for leave to bring a motion for an injunction is denied.
[12] The Giacomins are, however, granted leave to amend the title of proceeding of their action in accordance with the draft amended statement of claim included in their motion record.
Costs
[13] The parties have filed costs outlines.
[14] If they are unable to settle the issue of costs, the defendants may deliver brief written submissions within seven days of the date of this endorsement. The plaintiffs may deliver brief written submissions within seven days of the date of receipt of the defendants’ submissions and the defendants may deliver brief reply submissions within seven days of receipt of the plaintiffs’ submissions.
[15] This timetable may be amended by the parties on consent. If the timetable is amended, the defendants shall advise the court of the new timetable when they file their initial submissions.
Justice H. Williams
Date: August 30, 2021
COURT FILE NO.: CV-19-00000355-0000
DATE: 2021/08/30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Marie Giacomin and Jeffrey Giacomin, Plaintiffs
AND
Patrick Weighell and Susan Weighell, Defendants
BEFORE: Justice H. Williams
COUNSEL: James McCarthy, for the Plaintiffs
Roberto Ghignone, for the Defendants
ENDORSEMENT
Justice H. Williams
Released: August 30, 2021