Lee et al. v. Agnelo et al., 2021 ONSC 8188
COURT FILE NO.: CV-21-658765
DATE: 2021-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Howard R. Lee and John S. Willson
Plaintiffs
– and –
Fernando Agnelo, Michelle Agnelo and Ryan Lamar Thompson
Defendants
AND BETWEEN:
Fernando Agnelo, Michelle Agnelo and Ryan Lamar Thompson
Plaintiffs by Counterclaim
– and –
Howard R. Lee, John S. Willson, Angela Moise and Angela Ingeborg Helena Willson
Defendants by Counterclaim
COUNSEL:
Bojeczko, S., for the Plaintiffs/Defendants by Counterclaim
King, T. and Pieters, S., for the Defendants/Plaintiffs by Counterclaim
HEARD: December 1, 2021
SUGUNASIRI, J.:
reasons for decision
Overview:
[^1] The parties are neighbours residing at 9 (Lee and Moise), 11 (Willsons) and 15 (Thompsons and Agnelo) Fiesta Lane. Lee and Willson have a long common driveway leading from Fiesta Lane to their houses up on a hill. Thompsons and Agnelo have a shorter driveway and house at street level. Both driveways are separated from the roadway by a “boulevard” belonging to the City. Their dispute arises from where the Thompsons park their two cars. An illustration best exemplifies the issue:
[^2] According to Lee and Willson, the Thompsons and guests regularly park their vehicles on the City boulevard abutting the property in such a way as to narrow the boulevard access to the driveway leading to their homes. They commenced the within action for property infringement based on nuisance, civil assault and harassment. They now seek an interlocutory injunction pending disposition of the action and the Defendants’ counterclaim.
[^3] The Defendants deny interference and nuisance. They argue that they need to park in the boulevard area to accommodate their need to leave room between the cars and the garage. They require this room to access their garbage bins and to take strollers in and out of the house. The ramp for the strollers runs from the front door and along the front of the house to the garage. The Defendants also submit that the City permits parking on the boulevard and that Lee and Willson’s complaint arises solely from anti-Black racism.
[^4] To enjoin the Defendants, the Plaintiffs must demonstrate that there is a serious issue to be tried; that they will suffer irreparable harm if the injunction is not granted; and that the balance of convenience favours granting the injunction.[^1] In cases involving infringements of property rights or the enforcement of a municipal bylaw, courts have modified this test and ordered injunctions as a right once the plaintiff has proven that there is a strong prima facie case with respect to the property right infringement.[^2]
[^5] I dismiss the motion. The Plaintiffs have neither demonstrated a strong prima facie case that their property rights have been infringed nor irreparable harm if applying the traditional test. That said, it appears that both the Thompsons and the Plaintiffs can be accommodated if the Thompsons parked their vehicle at a 45-degree angle to the left so that it does not encroach on the boulevard entrance to the Plaintiffs’ driveway. They may also be able to park their vehicles closer together on their driveway to minimize the impact on the Plaintiffs. Despite my refusal to enjoin the Thompsons from parking on the boulevard, I strongly urge them to simply park on an angle or try to park their vehicles closer together to minimally narrow the boulevard access to the Plaintiffs’ driveway.
Brief Facts:
[^6] Ryan and Michelle Thompson (nee Agnelo) live with their two young children on a corner lot at 15 Fiesta Lane in Etobicoke. John and Angela Willson live at 11 Fiesta Lane. Their house is northeast and up a hill from 15 Fiesta Lane. The Willsons’ driveway runs alongside the Thompsons’ driveway at its mouth and then bends east and up the hill. The Willsons share this driveway with Lee and Moise who also live directly northeast from the Willsons at No. 9. Lee and Moise also have a small driveway lower down on Fiesta Lane itself.
[^7] Outside the Thompsons’ front door is a ramp that runs alongside their home to the driveway front door of the garage. The Thompsons also store their garbage, compost and recycling bins on the other side of the garage closest to the property line with the Willsons. It is clear from the photos tendered and admitted that the placement of the ramp requires a gap at the back of the Thompsons’s driveway to allow them to wheel the children’s strollers out and to access their toys from the garage. In order to allow for this access, the Thompsons have been parking their vehicles higher up in their driveway. This regularly leads to at least one of the vehicles being parked on the boulevard in the manner set out in the diagram. This narrows the opening of the Plaintiffs’ driveway. As the dispute escalated, the Thompsons placed a large pilon followed by a “parking curb” on the boulevard, delineating what the Thompsons believe to be their right of way.
[^8] The Plaintiffs contend that the narrowing of the boulevard access to their driveway is likely to prevent emergency vehicles from accessing their homes. Lee is 75 years old and Willson is 65. They are concerned for their safety should they require emergency assistance. The Plaintiffs are also concerned for the safety of friends and family, especially with the parking curb on the City boulevard. Friends and family may not see the concrete block after a snowfall, or they will run into it due to the restricted width or due to the angle at which they enter the driveway. On more than one occasion the Plaintiffs have already run into the parking curb. The Thompsons’ behaviour in their view amounts to an infringement of their property rights and is an actionable nuisance.
[^9] The Thompsons counterclaim alleging nuisance, trespass, intimidation, harassment and intentional infliction of mental suffering. They argue that they have been trying to respect the property lines. They also submit that any encroachment onto the City boulevard is permitted not only by the Toronto Municipal Code but also by a City inspector. The complaints, they submitted, are unfounded. Mr. Thompson feels harassed as the only African Canadian man in a largely Caucasian area. He takes particular exception to Lee and Willson’s comments that they feel unsafe around him despite him being a university educated family man.
Analysis:
The test
[^10] The traditional test to apply when considering an interlocutory injunction is the three-step test identified in RJR McDonald:
Is there a serious issue to be tried?
If the injunction is not granted will the plaintiffs suffer irreparable harm? And
Which party will suffer the greater harm if the injunction is granted or refused (balance of convenience test)?
[^11] In certain cases, the court has applied a modified test where the defendants are interfering with property rights.[^3] When the court adopts this modified approach, the Plaintiffs must only establish a strong prima facie case.[^4] The rationale of the approach arises from Sharpe J.’s comments in his text, Injunctions and Specific Performance:[^5]
4.610 Under our system of law, property rights are sacrosanct. For 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.
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 … 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. [Emphasis added.]
[^12] This approach has been applied in picketing cases where picketers are alleged to be impeding access to the applicant’s property[^6] and where human blockades prevent access to property.[^7] In Loucks, Justice Henderson also notes that this modified approach has been used when the defendants are breaching municipal bylaws.
Modified injunction test is neither warranted nor have the Plaintiffs met it
[^13] The Plaintiffs appear to argue that this modified approach is warranted in the case at bar and that they meet the strong prima facie case test. I disagree. First, the cases that the Plaintiff cites to support applying the modified approach involve trespass that prevents the property owners and their guests from entering the property. Justice Sharpe’s comments are also focused on property infringement in the nature of trespass. That is highly distinguishable from this case where the alleged property violation is an unspecified narrowing of the boulevard access point to the Plaintiffs’ driveway. Second, even if the modified test was appropriate, the Plaintiffs have not demonstrated a strong prima facie case. Let me explain.
[^14] The Plaintiffs’ allegation of infringement of property rights lies in private nuisance. They correctly state that private nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable. Substantial interference with property is one that is non-trivial. [^8] Only interferences that “substantially alte[r] the nature of the claimant’s property itself” or interfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim in nuisance.[^9]
[^15] For the purposes of this motion, the Plaintiffs have not shown a strong prima facie case of substantial interference. While they have provided numerous photos, I agree with the Defendants that they lack specificity in terms of how often the Defendants were parked in the boulevard and the extent to which the Thompson vehicle narrowed the boulevard access to the Plaintiffs’ driveway. From the video provided by the Defendants, it was clear that vehicles as large as a delivery cargo van could enter the driveway. The fact that they might have to be a bit more careful in their turns when the Defendants’ vehicle is parked there does not amount to a strong prima facie case that there is substantial interference. As noted by Justice LaForest in Tock v. St. John’s Metropolitan Area Board, actionable nuisance includes “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes,” and not claims based “on the prompting of excessive ‘delicacy and fastidiousness’.”[^10] Based on the evidence in this motion, the Plaintiffs’ have not made out a strong prima facie case that the Thompson vehicle is materially interfering with their ordinary comfort. In my view, the Thompson vehicle may be an inconvenience, but it does not rise to the level of substantial interference.
[^16] Similarly, Lee’s concern that emergency vehicles might not be able to reach him if needed is supported by limited and speculative evidence. While I have the dimensions of an ambulance, I do not have the comparative dimensions of the driveway entrance when a car is parked on the adjacent boulevard versus when it is not. It is also entirely speculative that an ambulance would not be able to reach the house with the Thompson car parked on the boulevard or that in any event, emergency vehicles would not park down below and walk up to the houses. It is certainly not clear that a firetruck could, or would, ever go up the driveway to the houses even without the Thompsons parking on the boulevard.
[^17] Allegations that the Thompsons are breaching a City of Toronto by-law governing the boulevard also do not assist the Plaintiffs. First, the Plaintiffs do not plead it. Second, the evidence on this motion does not establish a strong prima facie case that the way the Thompsons may be parking their car violates any by-law. Article II § 918-2 of the Municipal Code states:
B. No person shall park any motor vehicle on any boulevard unless parking is authorized under this chapter or under any other Municipal Code chapter or by-law except for the parking of a motor vehicle within the confines of that portion of the boulevard within a private driveway, provided that no motor vehicle may be parked in the driveway less than 0.3 metre from the back edge of the sidewalk, or where no sidewalk exists, not less than 2.0 metres from the face of the curb or edge of the roadway.
[^18] Another part of the Municipal Code states that no person shall on any highway park any vehicle in front of or within 60 centimetres of a driveway so as to obstruct vehicles in the use of a driveway (Chapter 950, Article IV, §950-400). Article §743-31 of Chapter 743 permits parking on the boulevard as long as doing so does not obstruct a driveway, impede or pose a hazard to vehicle traffic.
[^19] There is no evidence to support a strong prima facie case that the Thompsons are violating any of these bylaws other than through visual “guesstimates”. The court will not interfere or grant rare injunctive relief on the basis of “guesstimates”. At best, the evidence shows that the Thompson vehicle, when parked on the boulevard, slightly narrows the boulevard entrance to the Plaintiffs’ mutual driveway. This is not a basis to grant an injunction, especially where the Thompsons appear just as likely to be complying with the Municipal Code, as not.
The Plaintiffs do not succeed using the traditional injunction test
[^20] Having failed to persuade me that the modified injunction test applies, the Plaintiffs must meet the three-part RJR McDonald test to enjoin the Defendants from parking on the boulevard. Even applying this test, the Plaintiffs cannot succeed.
There is a serious issue to be tried
[^21] The Plaintiffs meet this test. The Defendants agree that the threshold to show that there is a serious issue to be tried is low. It requires a common-sense limited review of the merits of the case. As the Thompsons assert, claims fall at this stage if they clearly lack merit or are frivolous and/or vexatious.[^11] After a preliminary assessment of the Plaintiffs’ claim, I conclude that it does not “clearly lack merit” nor is it “frivolous” nor “vexatious”. The photos demonstrate the location of the Defendants’ vehicles on at least a couple of occasions and some potential narrowing of the boulevard access to the Plaintiffs’ driveway as a result. Mr. Thompson admits that he parks past his lot line onto the boulevard because he and his family require space at the back of his driveway, in front of his garage. This clears the Plaintiffs over the very low bar set at this stage of the RJR McDonald test.
Refusing the injunction will not cause the Plaintiffs irreparable harm
[^22] The requirement for irreparable harm is much more rigorous. It is well settled that the test for irreparable harm is a strict one requiring clear and non-speculative evidence to show that the Plaintiffs will suffer harm that cannot be quantified in monetary terms or compensated through an award of damages.[^12] Bald allegations or general beliefs or concerns, without factual underpinning establishing a reasonable likelihood of irreparable harm does not satisfy the requirement.[^13] In other cases, courts have required “a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result.”[^14]
[^23] I agree with the Thompsons that Lee’s bare assertion that he and Willson believe that they will sustain irreparable harm if the Thompsons do not stop parking on the boulevard is not supported by clear and convincing evidence. The assertion that Lee and Willson, or their spouses, will undoubtedly require medical attention from first responders due to their age is not supported with any medical evidence. The general inference that people in their sixties and seventies will require medical attention, and the further inference that the Thompsons’ cars would prevent safe passage of first responders, are not adequate bases to enjoin the Thompsons. Similarly, for the reasons already discussed, I am not persuaded that anyone will be irreparably harmed by having to enter the Plaintiffs’ driveway through a narrowed boulevard access point. Having said that, I do order the Thompsons to remove the parking curb currently in place. With the winter months coming, that curb could pose a hazard to those entering the Plaintiffs’ driveway if covered in snow.
Balance of convenience favours the Thompsons
[^24] I need not discuss balance of convenience. However, if I am incorrect in my analysis of irreparable harm, it would be more prejudicial to the Thompsons to stay within their lot line than it would for the Plaintiffs to enter their driveway through a slightly narrowed boulevard entrance. It is clear that the Thompsons require some room at the back of their driveway to manoeuvre strollers and garbage bins. While I agree that some of the photos show unnecessary gaps between the Thompsons’ cars, it is more inconvenient for the Thompsons to park within their lot line than it is for the Plaintiffs to pass through a boulevard narrowed by what may be legal parking by the Thompsons.
[^25] I add that this was a request for interlocutory relief pending final determination of the action. My comments and findings do not suggest that requiring the Thompsons to stay within their property line is never warranted. Indeed, the court may very well come to a different conclusion on a full record. This is another reason why the parties should try to find a practical solution to suit everyone’s interests.
Final comments: anti-Black racism
[^26] Having dismissed the motion, I need not consider the impact of anti-Black racism in assessing the equities of granting the injunction. This issue is complex and goes beyond people’s conscious intentions. I say this with respect to Lee’s contention that he could not possibly be driven by anti-Black racism because of his award-winning community work. This may be true, but it is not the point. I do not say this as a criticism or comment about Lee. Rather, I am using this opportunity to add to the growing body of caselaw that anti-Black racism need not be overt nor intended, in order to harm.
[^27] Anti-Black racism is a reality in our society arising from centuries of stereotyping, negative messaging and negative imaging. As the Ontario Court of Appeal has recognized: “For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them."[^15] While much of the jurisprudence on anti-Black racism arises in the criminal context, it is impossible to imagine that civil disputes are completely immune from such influences.[^16] Often it can only be inferred from circumstantial evidence,[^17] which has its own pitfalls. The challenge for another day will be to determine if, and to what extent, unconscious anti-Black racism impacts on the equities of this case.
Disposition:
[^28] I dismiss the Plaintiffs’ motion. However, I order the Defendants to remove the parking curb, which may pose a hazard in the winter months if covered by snow. The parties agree that cost of this motion is reserved to the trial judge.
P.T. Sugunasiri J.
Released: 2021-12-17
COURT FILE NO.: CV-21-658765
DATE: 2021-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Howard R. Lee and John S. Willson
Plaintiffs
– and –
Fernando Agnelo, Michelle Agnelo and Ryan Lamar Thompson
Defendants
AND BETWEEN:
Fernando Agnelo, Michelle Agnelo and Ryan Lamar Thompson
Plaintiffs by Counterclaim
– and –
Howard R. Lee, John S. Willson, Angela Moise and Angela Ingeborg Helena Willson
Defendants by Counterclaim
REASONS FOR DECISION
Sugunasiri J.
Released: 2021-12-14
[^1]: RJR McDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 348-349. [^2]: Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), 232 D.L.R. (4th) 362 (Ont. S.C.), at paras. 24-27 [Loucks]. [^3]: Loucks, supra note 2. [^4]: Ibid, at para. 37. [^5]: Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Aurora: Canada Law Book, 2004). [^6]: 55104 Newfoundland & Labrador Inc. (Ocean Choice International L.P.) v. Stockley, 2012 NLTD(G) 5. [^7]: Loucks, supra note 2. [^8]: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at paras 18-21; St. Lawrence Cement Inc. v Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 77. [^9]: St. Pierre v. Ontario (Minister of Transportation and Communications), 1987 CanLII 60 (SCC), [1987] 1 S.C.R. 906, at p. 915. [^10]: 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, at p. 1191. [^11]: RJR Macdonald, supra note 1, at p. 348. [^12]: Ibid. at p. 341; Naji v. Denys, 2018 ONSC 6568, at paras. 87-103. [^13]: Dilico Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 892, at para. 35. [^14]: International Relief Fund for the Afflicted and Needy (Canada) v. Canadian Imperial Bank of Commerce, 2013 ONSC 4612, at para 37. [^15]: R v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 OR (3d) 324. [^16]: See for example Morgan J.’s comments in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457, at paras, 33-37. [^17]: Peel Law Association v. Selwyn Pieters, 2013 ONCA 396, at para 72.